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prohibit in commerce among the States all articles that are not produced in such ways and surrounded by such influences as in the judgment of Congress may be for the best interest of the people at large, what is there left for the States to do about regulating their own affairs?
Prof. PARKINSON. Senator, that again brings up the question, What is to be the general application of this rule in the future? It is impossible to say. We can only discuss the particular case that is now before us.
There is an element of public good and of public morals in this case, and therefore Congress can reach out to regulate
Senator BRANDEGEE. I agree to that, and I think there is no man in Congress, or if there is he ought not to be, who would not like to alleviate any wrong conditions that exist in the country. But when I asked what is going to become of the powers of the States to manage their own local affairs if it is so that the General Government, whenever in the opinion of Congress the public welfare demands, may, through the commerce clause, compel all the States to act as the General Government wants them to, irrespective of the way they want to act themselves, what becomes of local self-government in this country?
Prof. PARKINSON. In the first place, Senator, the power of Congress will always be subject to this general rule, that there must be conditions which justify the regulation in the interest of the public health, morals, safety, and welfare. In the second place, the States have transferred this power to Congress, and it is not only a power, but it is the duty of Congress to use the power in the interest of national safety, welfare, and morals. Take, for example, the right of a State to deprive any person of life, liberty, or property without due process of law. A few States had the due process provision in their constitutions prior to the adoption of the fourteenth amendment. The adoption of the fourteenth amendment was merely a compulsion on all the States not to exercise any of their powers to deprive any person of life, liberty, or property without due process of law. And as the power of the Federal Government advances by its proper development, it will gradually extend to fields which it has not hitherto entered, and it is true that it will compel States to do in the interest of the welfare of the Nation what perhaps one or two States are now unwilling to do. This is not the first time that Congress has been asked to reach out and regulate local matters, and it will not establish
Senator BRANDEGEE. It will not be the last either.
Prof. PARKINSON. And, Senator, it does not matter in the slightest what this committee or what this Congress may do with this bill so far as future requests and future demands for the extension of the Federal power are concerned. You can not hold up that demand by any action which you may take on this bill. You were told yesterday that if you recommended or passed this bill you would be flooded with demands to extend the Federal power. You will be flooded with those demands whatever you do with this bill, and
you will be flooded with them until the limitations of the congressional power are more definitely prescribed by the Supreme Court.
Senator BRANDEGEE. I think that is very likely.
The ACTING CHAIRMAN. Let me ask you this question, Professor: I assume that the State governments would have the right to adopt certain sanitary regulations with respect to the building of factories, with reference to light, to heat, and pertaining generally to the comforts of the employees. Now assuming that to be so, and I do not think there is any doubt about it, do you believe that the Federal Government under this commerce clause of the Constitution would have the right to adopt those same regulations with respect to factories in which goods were made for sale and transportation in interstate commerce ?
Prof. PARKINSON. Senator, there is where the judgment of Congress becomes important. That is for the Congress to say. If conditions at the time that it passes such legislation justify it, if in other words, here is the general test, and you can not make it more specific—if you should pass that regulation now I think the average man would be shocked by it, and if the average man would be shocked by it the chances are that the Supreme Court of the United States would be shocked by it. And the question whether that kind of legislation is going to be constitutional or unconstitutional is one of conditions existing at the time that the Congress steps in to act, and the judgment of Congress, unless it be arbitrary, is going to be very largely adopted by the Supreme Court. The Supreme Court has said in all of these cases that it will only intervene to hold unconstitutional such legislation where the legislative body has obviously acted arbitrarily and with the result of confiscation. In other words, unreasonably. You can not-no one can undertake to answer such questions without all of the facts and the conditions before him, because of necessity the facts and conditions are the necessary basis for judgment. And I say again the only answer I can make to your question is that if the conditions in the country are such that a regulation to that effect can reasonably be interpreted to be beneficial to the public health or welfare, it will not shock the average man, just as this legislation will not shock the average man. The average man is ready for this childlabor legislation, is ready for the suppression of child labor and is ready for the use of the Federal power to accomplish it effectively.
The ACTING CHAIRMAN. Let me ask you another question. You speak of the conditions as controlling, and to some extent that is true. We have possession of the Philippine Islands and we legislato with respect to the Philippine Islands. It is said that the youths in the Philippine Islands mature there two or three years earlier than they do in this climate. Suppose we were to assume that children should not be permitted to work in the factories in this country under 16 years of age, but that the children in the Philippine Islands are as mature at 13 or 14 years as our children here are at 16. Would the conditions sustain legislation in both localities in the same way?
Prof. PARKINSON. It would depend upon whether the different conditions were such that a fair regulation as to the one would be felt to be a shockingly unfair regulation as to the other. Whether that is so, I do not know.
The ACTING CHAIRMAN. That is, it might be constitutional with reference to the States here but unconstitutional with reference to the Philippines.
Prof. PARKINSON. I think a child-labor bill enacted for the United States might be constitutional, and one enacted for the Philippines might be unconstitutional.
Senator BRANDEGEE. In other words, all these things are constitutional or unconstitutional according as the Supreme Court says.
Prof. PARKINSON. There is absolutely no doubt about the fact that where the constitutionality of a regulation by the States or by the Nation is opposed wholly on the ground that it deprives a person of life, liberty, or property without due process of law, the fundamental test of its constitutionality is its reasonableness, and the Supreme Court will hold it constitutional unless it is so unreasonable as to shock the average man as an arbitrary confiscatory and unreasonable action of government. We may quarrel with that test, but there is no doubt about the fact that it is the test under the due process clause.
The ACTING CHAIRMAN. Let me ask you a question along that line. It has been suggested to me here. Do you think that the Congress would have the power to prohibit the transportation of goods in interstate commerce which are made by women who are employed more than eight hours per day?
Prof. PARKINSON. It would not help at all, Senator, for me to answer that question. What I think about that would throw absolutely no light on the constitutionality of this bill.
The ACTING CHAIRMAN. We may be of a different opinion.
Prof. PARKINSON. It would throw absolutely no light upon the general question of the constitutionality of this bill; but I should say this, my own personal opinion is that it has been so well demonstrated in various parts of the country that excessive hours of work for women are so detrimental to the public health and the public welfare, it has become so well accepted that the Government has the p'wer to interfere and prevent excessive hours of work for women. that I do not believe the Supreme Court of the United States would interfere to set aside the judgment of Congress if Congress should deliberately enact the bill suggested.
The ACTING CHAIRMAN. Is there anything further ?
Prof. PARKINSON. Mr. Chairman, if you desire, I will send a copy of my complete brief on the subject to the clerk of the committee to be filed.
(The bricf was subsequently submitted to the clerk of the committee and is here ordered printed in full as follows:)
A BRIEF DISCUSSING THE CONSTITUTIONALITY OF THE KEATING
OWEN CHILD-LABOR BILL.
(By Thomas I. Parkinson, of the legislative drafting bureau, Columbia University.) The Palmer-Owen bill prohibiting shipment in interstate commerce of the products of child labor passed the House of Representatives in the last Congress and a similar bill (now known as the Keating-Owen bill) has been reported favorably by the House Committee on Labor. This brief undertakes to consider the various aspects of the constitutional power of Congress to regulate interstate commerce for the accomplishment of the purposes of these bills.
The conclusions of the brief may be summarized as follows:
II. 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.
III. The power of Congress over interstate commerce may be exercised in the interest of the public health, morals, safety, and welfare as well as in the interest of that commerce and its instrumentalities.
IV. Whatever its incidental effects, a Congressional regulation of interstate commerce is never a violation of the reserved rights of the States.
V. The power of Congress to prohibit shipment or transportation in interstate commerce is limited only by the requirement of the fifth amendment that such prohibition shall not constitute a deprivation of individual rights without due process of law; i. e., that such prchibition shall not be an arbitrary or unreasonable interference with the individual's rights of property or liberty of contract.
VI. The prohibition of shipment in interstate commerce of the products of child labor is a reasonable exercise of the congressional commerce power in the interest of the public welfare.
I. The Power or CONGRESS OVER INTERSTATE COMMERCE IS COMPLETE AND
Congress has supreme and plenary power over interstate commerce. Article 1, section 8, clause 3 of the Federal Constitution provides: "That Congress shall have power
to regulate commerce with foreign nations among the several States and with the Indian tribes." Under the Articles of Confederation each State had complete control over its own
The exercise of this control resulted in embarrassing and destructive consequences and led to an oppressed and degraded state of commerce. (Brown v. Maryland, 12 Wheat., 419, 445 .) The prevailing motive for the adoption of the present Constitution was to rescue it from the
perpetual jarring and hostility of commercial regulation. * * The entire purpose for which the delegates assembled at Annapolis was to devise means for the uniform regulation of trade. They found no means but in a general government; and they recommended a convention to accomplish that purpose.
We do not find in the history of the formation and adoption of the Constitution that any man speaks of a general concurrent power in the regulation of foreign and domestic trade as still residing in the States. The very object intended, more than any other, was to take away such power. If it had not so provided, the Constitution would not have been worth accepting.” (Chief Justice Marshall'in Gibbons v. Ogden, 9 Wheat., 1, 11, 12 [1824).)
It is no longer necessary to cite cases to support the declaration that the commerce clause has vested in Congress a broad, complete, and exclusive power over interstate and foreign commerce; but the following from one of Chief Justice Marshall's opinions is worth repeating here:
"It may be doubted whether any of the evils proceeding from the feebleness of the Federal Government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, a matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the States. To construe the power so as to impair its efficacy would tend to defeat an object in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity." (Brown v. Maryland, 12 Wheat., 419, 446 .)
Whatever may have been the primary reason for the insertion of this clause in the Constitution it is now definitely settled that it has vested in Congress a broad, complete, and exclusive power over interstate commerce.
In the early case of Gibbons v. Ogden (supra 196), Chief Justice Marshall discusses the congressional power over interstate commerce as follows:
"What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. * If as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at ele:tions are in this as in many other instances, as that for example of declaring war, the sole restraints on which they have relied to secure them from its abuse." (Quoted with approved in the Lottery Čase (1902], 188 U. S., 321, 353.)
This view of the commerce power was affirmed by the Supreme Court in the late case of Hoke v. United States (227 U. S., 308 320 (1913]), where it is said: “The pɔwer is direct; there is no word of limitation in it, and it broad and universal scope has been so often declared as to make repetition unnecessary.”
In the exercise of the power thus broadly granted and interpreted Congress has a wide discretion. A regulation of interstate commerce is not subject to attack in the courts on the ground that it is not the most advisable which Congress might have adopted under the circumstances. Thus in the Lottery Case (188 U, S., 321, 353 (19031), the court said:
"They (prior decisions) also show * * * that in determining the character of the regulations to be adopted Congress has a large discretion which is not to be controlled by the courts simply because in their opinion such regulations may not be the best or most effective that could be employed.”
The fact that an act of Congress regulating interstate commerce has the incidental effect of affecting or regulating intrastate commerce does not render it invalid. In a recent case Mr. Justice Hughes, citing numerous authoritative precedents, said:
"The completely internal commerce of a 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 the internal concerns of the State as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may 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.” (Minn. Rate Cases, 230 V. S., 352, 398 [1913).)
These cases establish in our constitutional law the principle that the power of Congress to regulate interstate commerce is a broad and complete power acknowledging no limitations except those contained in the Federal Constitution. This power, says Chief Justice Marshall, “is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the Constitution." In a very late case, Mr. Justice McKenna said: "The power is direct; there is no word of limitation in it and its broad and universal scope has been so often declared as to make repetition unnecessary.” In a similar case Mr. Justice Harlan said that "in determining the character of the regulations to be adopted Congress has a large discretion which is not to be controlled by the courts”; and in a very recent case Mr. Justice Hughes said: “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.". These declarations by the Supreme Court ought to be kept prominently in mind in approaching the consideration of the constitutionality of the proposed Federal child-labor legislation, and particularly they ought to be kept constantly before us when consideraing the validity of objections to its constitutionality based upon such general assertions as that the framers of the Constitution did not intend such extensive use of the Federal power; that there are other means by which the desired result can be more effectively or expeditiously accomplished; that the commingling of interstate and intrastate business makes such legislation in effect a regulation of manufacture for the intrastate trade; that the propɔsed legislation would be an interference with the reserved powers of the States, and similar contentions.
II. 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.
The States, by adopting the Federal Constitution, delegated to Congress the power "to regulate commerce
among the several States." We are, for the moment, concerned only with the interpretation of the word "regulate” and the determination of the question whether it should be interpreted to include power to prohibit. The answer must be found in the provisions of the Constitution itself as interpreted by the practice of Congress and the decisions of the Supreme Court. That the power under the commerce clause to regulate includes the power to prohibit is shown both by the application of general principles of interpretation and by authoritative precedent.