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Mr. EMERY. I do not think so, for the reason that the State would have no less power to change its legislation than to enact it. If any one of the States adopted a rule with respect to marriage and divorce, and if Congress adopted the same rule and provided that persons who are divorced from the marital relations by any other standard could not ship their products—their children, in other words-in interstate commerce as passengers, would the congressional provision be strengthened by that fact? If a rule of commerce applied to only one state and not to other states, it seems to me that it would be invalid for other reasons; that is, it would undertake to discriminate between States.
Senator ROBINSON. That is a very proper question, of course. In order to eliminate that question, suppose that every State had passed laws forbidding child labor-forbidding the employment of child labor under the age of 14 years and the employment of children between the ages of 14 and 16 for more than eight hours in any one day; could Congress then, under those conditions, pass this act ?
Mr. EMERY. If every State had laws like that?
Senator ROBINSON. Yes; every State. Could Congress then pass this act, in your opinion?
Mr. ÉMERY. I do not think so, because I do not see how that could change the power of Congress at all.
To return to the discussion of the Lottery case, and I want to call your attention to the language of the majority of the court in response to the assertion that the conclusion there reached meant that Congress could exclude any commodity from commerce:
We may, however, repeat, in this connection, what the court has before said, that the power of Congress to regulate commerce among the States, although plenary, can not be deemed arbitrary, since it is subject to such limitations or restrictions as are prescribed by the Constitution. This power, therefore, may not be exercised so as to infringe rights secured or protected by that instrument. It would not be difficult to imagine legislation that would be justly liable to such an objection as that stated and be hostile to the objects for the accomplishment of which Congress was invested with the general power to regulate commerce among the several States.
As to the Hoke case, the white-slave case, you will recollect that the proposition presented and sustained in Justice McKenna's opinion was the power of Congress to prevent or forbid the transportation of a person from one State to another for immoral purposes or to procure their transportation for that purpose. The court says:
What the act condemns is the transportation obtained or aided, or transportation induced, in interstate commerce, for immoral purposes.
No man has the right to transport a human being for immoral purposes. That is admitted. It is something inherently bad in itself, because the persons may be viewed in two ways, either from the purpose for which they are transported, or for what they are in themselves a commodity of-immorality.
I do not want to call the attention of the committee to too many of these cases, but I want to mention a further point in relation to them. Mr. Parkinson during his argument again and again reiterated that Congress possesses a national police power to protect
public morality, public health, and public morals. That is true, subject to this limitation. I do not want to say it has that power, because the courts have always said substantially that Congress possesses no police power as such, but what they have said very clearly, which marks the distinction between Mr. Parkinson's declaration and the fact, is that a regulation of commerce is not invalid, because it partakes of the “ quality” of police power. A "police quality" is generally applicable to all these exclusions from commerce to which I have called the committee's attention.
I desire also to take marked exception to the frequent assertion in the course of this argument that the exercise of commerce power is limited only by the fifth amendment. According to the circumstances of the regulation proposed, it would be limited by many other provisions of the Constitution, because, taking it as a whole, the Constitution is a remarkably prohibitive document. There are 115 negations in that instrument as against 79 affirmative grants of power.
Section 8, paragraph 3, of the Constitution delegates to Congress the power to regulate commerce with foreign nations and among the several States and with the Indian tribes.
Immediately thereafter, in section 9, paragraph 5, it is provided that no tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. That is a clear inhibition of exercise of commerce power.
Article IV provides that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by affirmation, and particularly describing the place to be searched and the persons or things to be seized.
This provision appears to modify the use of the commerce power, as indicated notably in a case with which you are undoubtedly familiar, that of Harriman v. The Interstate Commerce Commission (211 U. S.); also the case of Hale v. Hinkel (201 U. S.).
Next there is the well-known provision of Article V of the Constitution, which provides that,
No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law.
This article, which has been frequently referred to, lays its inhibition upon Congress as the fourteenth amendment does upon State legislatures. It also provides that no person shall be compelled to testify against himself in any criminal case; and if Congress undertook to require such a condition in a regulation of commerce it would run up against this prohibition.
There is also this further inhibition which is the essential source of distinction between State and Federal authority. That is Article X of the Constitution, which provides that 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.
All the powers of Congress are derived from delegated authority, and they are not defined, but enumerated powers. Every power not
so expressly delegated is reserved either to the States or to the people themselves. There has been no partitioning out of all the legislative power between the States and the Nation as was suggested here, because there are many powers that could be granted, but which the people have never delegated, although from time to time they do delegate additional powers, of which a recent instance is that of the income tax amendment. We amend the Constitution of the United States from time to time, and we also amend our State constitutions from time to time; but the sovereign undelegated power is in the people themselves.
The argument for this matter gains nothing by asserting that there is a great national evil to be regulated. Granting that there is great evil to be removed or regulated, the power to meet it must be expressly found in order that it may be authoritatively exercised. From these considerations and cases I desire now to present we submit that any rule prescribed for the regulation of commerce must not be arbitrary, must have some real and substantial relation with the commerce to be regulated, and must not conflict with other prohibitions or guaranties of the Constitution. There is no such real and substantial relation between the shipment of a commodity in commerce and the conditions governing the employment of children in an establishment in which it is produced. Such a rule, moreover, is in conflict with Article X of the Constitution of the United States.
It was said, in the course of proponent's argument, and it was reverted to by members of the committee, that there is a vast power in the nature of police authority that can be exercised by the Federal Government through its legislative department to meet national evils. It may not be expressly found in the various articles and grants of power in the Constitution itself, but in the nature of things it must reside somewhere for the protection of national morals, national health, national safety, and it can be referred to the commerce power. I call your attention to the fact that that proposition has been the express subject of a most elaborate character argument in the Supreme Court of the United States, because it was asserted very strongly by the Government in the famous case of Kansas v. Colorado. In disposing of that case the court fully met the contention that has been made here. The Government's counsel insisted that all legislative power must be rested in either the State or the National Government; no legislative powers belong to a State government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States.
In that case, as you gentlemen will remember, there was a question as to whether the State of Kansas or the State of Colorado was entitled to the flow of the waters of the Arkansas River or whether it was the Federal Government which was entitled to fix the conditions under which the flow of that river was to be had.
The court said: But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in, the grant of powers is in direct conflict with the doctrine that this is a Government of enumerated powers. That this is such a Government clearly appears from the Constitution, independently of the amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the tenth amendment. This amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which have not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: “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." The argument of counsel ignores the principal factor in this article, to wit, "the people.” Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it—" we, the people of the United States," not the people of one State, but the people of all the States—and article 10 reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution, by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This article 10 is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning. (Kansas v. Colorado, 206 U. S., 90.)
In the course of the argument made in support of this bill much time was spent in drawing distinctions between intrastate and interstate commerce. We insist the issue is broader; it is a distinction between the power under which manufacture and production shall be regulated and that under which the rule for intercourse shall be made.
In the nature of things, if a rule is to be prescribed, it must have a clear relation, a real and substantial relation, to the commerce which its proposes to regulate. You can not make anything a regulation of commerce by calling it such. It must be in its nature, on its face, a regulation of commerce. That is the point brought out in case of Adair v. United States (208 U. S., 161), a prosecution brought under the so-called Erdman Act, which provided among other things that no common carrier should discharge or threaten to discharge any employee of the carrier because of his membership in a labor organization.
The court decided two things. First, that the provision was repugnant to the provisions of the fifth amendment, because it understood to deprive the employer or his agent of what was at once a personal or property right, the right to create, and the right to terminate a relation of employment with another; and secondly, it was not a “regulation" of commerce.
The court said: Manifestly, any rule prescribed for the conduct of interstate commerce, in order to be within the competency of Congress under its power to regulate commerce among the States, must have some real or substantial relation to or connection with the commerce regulated. But what possible legal or logical connection is there between an employee's membership in a labor organization and the carrying on of interstate commerce? Such relation to a labor organiza
tion can have in itself and in the eye of the law no bearing upon the commerce with which the employee is connected by his labor and services. results, on the whole case, that the provision of the statute under which the defendant was convicted must be held to be repugnant to the fifth amendment and as not embraced by nor within the power of Congress to regulate interstate commerce, but under the guise of regulating interstate commerce and as applied to this case it arbitrarily sanctions an illegal invasion of the personal liberty as well as the right of property of the defendant Adair.
This case was reviewed again in Coppage v. Kansas (236 U. S.), although there was before the court a State statute and not an act of Congress. I call that case to your attention to observe the rule of construction laid down. It is most pertinent to this bill and is first well stated in Lochner v. New York (198 U. S., 45). The case of Lochner v. New York involved the so-called Baker's 10-hour law. The question was whether or not it was a health law," and the court held it was not, saying:
We are justified in saying so, when from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. The purpose of the statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must. be determined from the natural effects of such statutes when put into operation, and not from their proclaimed purpose.
Again said the court in Coppage v. Kansas (236 U. S.), page 1, in reference to the construction to be placed upon a Kansas statute, which was entitled "An act to provide a penalty for coercing or, influencing or making demands upon or requirements of employees, servants, laborers, and persons seeking employment," the question being whether or not the thing which was done was “coercion”:
When a party appeals to this court for the protection of rights secured to him by the Federal Constitution, the decision is not to depend upon the form of the State law, or even upon its declared purpose, but rather upon its opera, tion and effect, as applied and enforced by the State; and upon these matters this court can not, in the proper performance of its duty, yield its judgment to that of the State court.
After citing cases, the court says further: Now, it seems to us clear that a statutory provision which is not a legitimate police regulation can not be made such by being placed in the same act with the police regulation or being enacted under a title that declares the purpose which would be the proper object for the exercise of that power.
Mr. Justice Grier said, in the Passenger cases (7 How., 458), that “ the true character of an act of legislation can not be changed by its collocation," and that is most pertinent here.
The question of whether or not this bill proposes a regulation of commerce or whether it proposes a regulation of employment entirely within the jurisdiction of the State where the parties are engaged in production, is to be determined, not by a declaration in its title that it is a regulation of commerce, but by its words, by its legal effect, and by its practical operation when it becomes a statute. It is plain that its purpose is to prevent the employment of children within the age limit fixed in this bill; and the means by which that object is to be attained are, I submit, not within the power of Congress as a regulation of commerce.
I think the committee will admit that the State can not surrender its right to regulate domestic affairs except where there is concurrent jurisdiction any more than Congress can grant a State the right