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Senator CUMMINS. Yes. I have wanted to know whether, in your opinion, there must not be something else than the mere power under the commerce clause of the Constitution. I will give you another illustration. Suppose this bill, instead of being applicable to children, to child labor, was applicable to the product of negro labor, would it be Constitutional to the same extent?

Prof. PARKINSON. Senator, the truth of the matter is I did not want to answer that question right here, but I shall go ahead and indicate now how I shall answer it. The Congress has not arbitrary power over interstate commerce, and the reason that Congress has not an arbitrary power over interstate commerce is the fifth amendment. In other words, I, as an individual resident in the State of New York, have a right to find an interstate market for my goods, except to the extent that Congress may reasonably regulate that right.

Senator CUMMINS. You had not used the word "reasonable" before, and I did not know.

Prof. PARKINSON. Because, Senator, I am trying to divide this question into two: First, what are the respective rights of State and Nation? I want to get rid of the question of how far the Nation may be said to be trespassing upon State rights, and then take up the question of how far the individual has the right to assert the guaranty of due process.

Senator BRANDEGEE. In which case did the Supreme Court decide that the National Government had the national police power?

Prof. PARKINSON. The Supreme Court has in a number of cases asserted

Senator BRANDEGEE. But the subject of regulation and the means that Congress took to exercise its power under the commerce clause might be in the nature of police regulations, but never, so far as I know, has it held that the Nation had a police power.

Prof. PARKINSON. I have said a moment ago, Senator, it seems of no importance to me to say that Congress has or has not a police power.

Senator BRANDEGEE. I only suggested it because I understood you to say you were trying to get rid

first of the question whether the police power was in the States.

Prof. PARKINSON. No; the term “police power" is of no importance to me. It simply means that the States have certain powers which they may exercise despite the due process laws. It means, as applied to the Federal Government, that the Federal Government may exercise its express powers for purposes other than the particular purpose indicated by the clause itself; that the Federal Government may exercise its commerce power for a purpose beyond the protection of interstate commerce and its instrumentalities.

Senator BRANDEGEE. As I understood you, wherever Congress thinks it is for the public welfare, then it can legislate to prohibit commerce in legitimate articles between the States?

Prof. PARKINSON. I have not taken up that question yet.
Senator BRANDEGEE. I thought you had stated that.

Prof. PARKINSON. I had stated only that as between the respective jurisdictions of the Nation and the States, the Federal Government has the power to regulate, and this includes the power to prohibit, not

only for the protection of interstate commerce and its instrumentalities, but for the protection of other interests which Congress seeks protect. Now, what those other interests are, and what limitation there is on the Federal power by reason of the fifth amendment I have not yet taken up.

Senator BRANDEGEE. I thought you stated it broadly that whereever they thought it was for the public benefit they could prohibit commerce.

Prof. PARKINSON. On the contrary, I might say right now that all the argument yesterday directed to the question of arbitrary power in Congress to prohibit interstate commerce has no application to the constitutionality of this pending bill. We do not assert any arbitrary power in Congress to prohibit any and all interstate commerce. It is not necessary to assert any such arbitrary power in order to support the constitutionality of this bill. We do not believe Congress has any such arbitrary power. And there is absolutely no reason, in considering the constitutionality of this bill, to take into consideration whether or not Congress has an arbitrary power over interstate commerce.

The Supreme Court in the Lottery case said Congress had not an arbitrary power. We believe that it has not an arbitrary power; that its regulation must be reasonable. The only thing we want to insist on now is that the reason Congress has not an arbitrary power is not found in the commerce clause, is not found in any other clause which relates to the relation of the Federal Government to the States, but it is found in the fifth amendment, which relates only to the rights of the individual against the Federal Government.

If Congress has the power to regulate interstate commerce and the power to regulate interstate commerce includes the power to prohibit specified commerce, the next point which I want to discuss is that whatever its effect, a congressional regulation of interstate commerce is never a violation of the reserved rights of the States.

Granting that you have a regulation of interstate commerce, it can never invade the reserved rights of the States. Article 10 of the amendment to the Constitution provides:

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.

Now, there can be no question of reserved rights in the States until you have first determined the limits of the Federal power.

What is the limit of the Federal power over commerce ? Once you . fix that limit you know that beyond that the powers are reserved to the States, but up to that point this reserved power clause is not effective and has no application. Your first point is to determine what is the extent of the power over interstate commerce; what is the furthermost limit of the jurisdiction of the Federal Government under the commerce clause, and beyond that this reserved-power clause takes effect, but not until that point.

In the Minnesota Rate Cases Mr. Justice Hughes said: The completely internal commerce of the State then may be considered as reserved for the State itself. This reservation to the States manifestly is only of that authority which is consistent with and not opposed to the grant to Congress. There is no room in our scheme of government for the assertion of State power in hostility to the authorized exercise of Federal power. The authority of Congress extends to every part of

interstate commerce and to every instrumentality or agency by which it is carried on, and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the nation may deal with internal commerce of the State as such, but that the execution by Congress of its constitutional power to regulate interstate com. merce is not limited by the fact that interstate transactions have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from a supremacy of the national power within its appointed sphere.

In other words, whatever the mingling of intrastate and interstate transactions the question is still, What are the limitations of interstate commerce under the commerce clause of the Constitution, and up to that line Congress may regulate whatever the incidental effect on intrastate operations.

Now, I do not think it will be denied for a moment that a regulation by Congress that certain things shall not be shipped in interstate commerce is a regulation of interstate commerce. Regulation includes prohibition. Congress says these things shall stay out of interstate commerce. There can be no doubt that that is a regulation of interstate commerce under the decisions of the Supreme Court and under the practice established by Congress, therefore the only difficult point involved in the constitutionality of this pending legislation is, What is the effect on the commerce power of Congress of the fifth amendment? What is the effect of the provision that no individual shall be deprived of his right to life, liberty, or property without due process of law in the exercise by Congress of any of its powers?

The ACTING CHAIRMAN. Are you quite sure that your citation of the rate cases sustain your position? It seems to me there is this distinction to be drawn. When the Federal Congress assumes to exercise its powers with relation to commerce, then it supersedes any power that the State legislatures might have on that subject prior to this particular time. That relates specifically and directly to commerce. Now, under the bill under consideration it seem.s to me that this distinction could be made. I am not clear about it, but this is an attempt not to regulate commerce so much as it is to regulate the manufacture of the articles of commerce. I do not know that the distinction is sound, but it occurs to me.

Prof. PARKINSON. You will see in a moment that I cited the opinion in the rate cases merely as indicating that the incidental effect upon intrastate commerce or upon intrastate transactions or operations, as Justice Hughes says-

The ACTING CHAIRMAN. As relating to commerce there is no question about that under that decision.

Prof. PARKINSON. The incidental effects do not affect the validity of the congressional regulation. Now, the regulation in this case is of articles to be shipped in interstate commerce. You very properly say it has the incidental effect of legislating as to the conditions under which these articles may be manufactured, but that effect is incidental. As Mr. Justice Hughes has said, not only in the rate case, but in a recent address before the New York Bar Association:

Regulations required in the exercise of a judgment committed to Congress for the exercise of interstate commerce can not be made nugatory by the mere commingling of interstate and intrastate transactions.

Senator BRANDEGEE. You think the real purpose of this bill is purely to regulate commerce and that the child-labor part of it is merely incidental?

Prof. PARKINSON. I think that is not the point of distinction between a constitutional and an unconstitutional bill.

Senator BRANDEGEE. Whether it is or not, I do not want to press you about it. Are we really here to regulate commerce in cotton between the States, for instance, or to regulate the hours of labor of children?

Prof. PARKINSON. The purpose of the bill is to withdraw the instrumentalities and facilities of interstate commerce from the employer or manufacturer who makes use of child labor in the manufacture of his products.

Senator BRANDEGEE. I understand it prohibits commerce in cotton, for instance, if children work on it longer than certain hours; but is it the purpose to prohibit commerce or is it the purpose to prohibit the employment of children under a certain age ?

Prof. PARKINSON. The purpose is to prohibit the commerce in the interest of withdrawing Federal agencies from the continuance of a profitable market for the products of child labor, and I do not hesitate for a minute to assert that the underlying purpose of this legislation is to stamp out child labor.

Senator BRANDEGEE. The means employed is the prohibition of commerce in the products.

Prof. PARKINSON. The means employed is the exercise by Congress of a power vested in it, which the Supreme Court of the United States has held was vested in it, to be exercised among other purposes for the general welfare of the country.

Senator CUMMINS. That is, the legislation in regard to lotteries; the purpose was to suppress lotteries; that was the real purpose and the means employed to exclude the tickets and all of the literature of the subject from interstate commerce.

Senator BRANDEGEE. I think he has answered very frankly.

Senator CUMMINS. I suppose the two things are exactly alike, provided child labor and lottery tickets are alike.

Prof. PARKINSON. Now, I want to take up what I have said is the second general question involved in this subject, namely, the effect of the fifth amendment to the Federal Constitution. Under it the individual is entitled to say to Congress and the Supreme Court will uphold his position, “You can not deprive me of my right of property or my right of personal liberty without due process of law.”'

What is due process of law? The guaranty of due process of law, whatever it may have been held to mean in particular cases in the past, whatever it may ultimately be held to mean for all general cases which may arise under it in the future, certainly does not mean that the Federal Government or the State governments may not affect rights of property or of liberty in the interest of public welfare. It does not secure the continuance of principles which have endured for a long time. In other words, it is not true that whatever has become established law is protected by the guaranty of due process. What it does is to protect the individual against arbitrary action of Government, to secure him against unreasonable confiscatory interference with his property or his liberty. We have not had many cases

interpreting the meaning and effect of due process under the fifth amendment. The fifth amendment guarantees the individual against Federal deprivation of his property or liberty without due process. The fourteenth amendment guarantees the individual against State deprivation of life, liberty, or property without due process. Those two guaranties, the one in the fifth and the other in the fourth amendments, appear in the same group in the Constitution, one relating to the Federal Government and the other relating to the State governments, and they both protect the individual against deprivation without due process. We have therefore the benefit of the decisions under the fourteenth amendment in attempting to arrive at a decision as to what is the meaning of the fifth amendment.

Under the fourteenth amendment the Supreme Court of the United States and the State courts have upheld regulatory legislation which interfered with private property, which interfered with personal liberty, wherever that interference was reasonably required by conditions in the community affecting the public safety, the public health, or the public welfare. Wherever it could be reasonably shown to the Supreme Court that the regulation, though an interference with private property or with personal liberty, was reasonably justified by conditions in the community which affected the public health, safety, or welfare, then the regulation, though it interfered with property or liberty, has been held not to be å denial of due process.

The test is a vague and indefinite one. You can not lay down any rule which will separate the reasonable from the unreasonable, and that, in the last analysis, is the test. The legislation which is a reasonable regulation in the interest of the general welfare is constitutional. The legislation which is an unreasonable interference with private property or personal liberty is unconstitutional. There is no more definite test. We can only be guided by the signposts which have been established by the judicial decisions of the past and await future decisions to make the line more definite.

The Supreme Court has said, in discussing this question, that there is no hard and fast line which separates the constitutional from the unconstitutional in this field of the police power and the due-process clause. The line tends to straighten as decision after decision establishes certain points, but it would be a foolish man who would undertake to lay down any general rule to determine whether cases which may be supposed to arise in the future would be constitutional or unconstitutional.

Gov. Kitchin asks, Would it be constitutional to prohibit the shipment of sound wheat from Minnesota to Wisconsin? Mr. Justice Harlan said, in the Lottery case, that we should not attempt to decide such questions until they come before us. We can not decide them until they come before us. Whatever we may think to the contrary, the Supreme Court of the United States has established the rule, which must be our guide in determining the constitutionality or unconstitutionality of legislation under the due-process clause and it is nothing more than this: What is reasonable in view of the conditions is constitutional and what is unreasonable in view of the conditions is unconstitutional; and every case must stand upon its own feet, must stand upon the conditions which exist at the time Congress passes the legislation, or must stand upon the conditions

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