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from discharging from their service or failing to employ one because he belonged to a labor organization, following the Adair case which nullified a similar law of Congress. The court held that it was one of the guaranteed rights of the citizen to make his own contracts, and he had a right to employ a man so long as he remained out of a labor organization, and that that law was void.
Now, at first blush one might think that the States have that power which Kansas assumed, but if he will read that decision and the one it follows he will see clearly that there are rights not derived from the Constitution which the Constitution guarantees. Is not the right to deal lawfully in lawful goods as clear as the right to contract for unorganized labor ?
Prior to the organization of this Government under the Constitution, each State had the right of an independent nation and had the right to levy any embargos, any prohibitions, or any taxes it pleased upon goods coming from another State. All the commentators tell us that the exercise of that power by the various States was the great cause that impelled the organization of the United States under the Constitution. It was to prevent one State from saying that the goods of another State should not enter.
I do not know that I have seen it stated any more clearly than in Tucker on the Constitution. He uses this language:
Under the Articles of Confederation the States could interdict trade inter se. The grant of power to Congress to regulate commerce was with the purpose not to transfer this power of interdicting interstate trade to Congress, but to leave interstate commerce free, as the Constitution intended, in order to form a more perfect Union. Could the Constitution have intended to destroy the freedom of interstate trade by congressional power, when it took it from the States and vested it in Congress in order to prevent such destruction? (2 Tucker on Constitution, 528.)
Now the States with sovereign power merged into the United States under the Constitution, so far as interstate trade is concerned, when that took place, they were as to the Union just as the counties are to the State in intrastate trade. As citizens they had this right of interstate trade. They formed the Union, as Mr. Tucker says, for the purpose of preventing interdicting trade from one State to another. So when we surrendered to Congress the power over interstate commerce and put in the fifth amendment, the guaranty of the rights of life, liberty, and property, there exists now no power, either in the States or the Nation, to forbid the transportation in interstate commerce of puro, blameless, harmless, fair articles.
Senator CUMMINS. Mr. Kitchin, do you remember what was known as the commodity clause that was put in the interstate commerce law of 1906 ?
Mr. KITCHIN. Yes, sir; I remember that.
Senator CUMMINS. And you remember the decision of the Supreme Court upon that clause ?
Mr. KITCHIN. I have not read that decision recently,
Senator CUMMINS. Well, that clause provided that a railroad company should not take for shipment a commodity as harmless as coal and transport it to the markets under certain conditions. The Supreme Court in passing upon it did not affirm its constitutionality, but, as you will remember, discriminated in this way: The particular coal involved in that suit was mined and owned by a subsidiary company. The Supreme Court held that the subsidiary company was not within the purview of the prohibition of the statute. But would there by any difference, in your opinion, between the cases intended to be covered by the commodities clause of the law of 1906 and this one which you are arguing?
Mr. KITCHIN. I have not given that particular matter consideration, but I should say the power of Congress over the instrumentalities of interstate commerce could be used to prohibit those instrumentalities from being used fraudulently, in a sense, and oppressively.
Senator CUMMINS. You will remember, I think, that Senator Bailey, who is a pretty well recognized lawyer in this country, and a very sound lawyer, and especially with respect to questions which relate to the Constitution, proposed the amendment, because it was not fair that a railroad company should own the commodity that it transported and enter into competition with other shippers in the sale of that commodity, whatever it might be. That was the foundation of the amendment.
Mr. KITCHIN. Yes, sir; but I do not think that will contradict the idea that I have, or any of the authorities that I shall cite. I can understand that when a railroad, competing for the public business, and having the power to charge freight rates, ships its own commodity it would have a great advantage over any other dealer, and the idea of requiring the interstate carriers to confine themselves to interstate transportation may be a sufficient differentiation of that case from the present one.
Senator CUMMINS. I am not saying, of course, that it is identical, but I wondered whether you had that statute and decision in mind.
Mr. KITCHIN. No, sir; I have not looked that up. Citizens of the United States, let me repeat, as far as interstate commerce is concerned, have the same right in interstate commerce that we have as citizens of the States in intrastate commerce. The argument was used in the discussion heretofore in the other end of the Capitol, that if the State had the right to pass this proposition for intrastate commerce, then the United States has the right to pass it in interstate commerce. True, but the State itself has no power to prohibit the buying and selling and transportation within its borders of goods because made by children or women in the State unless those goods were unlawfuly made,
Senator CLAPP. You are speaking of the State now before it was merged into the Union ?
Mr. KITCHIN. No; I am speaking of the present. The State of North Carolina, for instance, has no power to forbid me from shipping from one county to another, for a lawful purpose, wheat or cotton or anything else that is lawful in itself and fairly branded, not adulterated, not fraudulent, not immoral, on account of its manufacture, unless its manufacture was contrary to the law. Take cotton goods as an example. The cotton goods made in North Carolina, which would be barred from interstate commerce under this bill, are lawfully made. They are sound. They are as good as if made by a 30year-old man in every respect; there is no harm in them, no misbranding, and no fault can be found with the goods themselves. A manufacturer, we will say, makes the goods in North Carolina. A wholesaler in another part of the State buys those goods. Now, can you prevent that wholesaler from transporting them into interstate
commerce? That brings us down to the proposition, it seems to me, whether this is an arbitrary power or not. If it is an arbitrary power, why did not the courts say so when they first met this question And yet the court has said it is not an arbitrary power.
I put this question to some gentlemen: Would any man argue that 75 years ago Congress would have had the power under this clause to permit the transportation into interstate commerce of goods made by slave labor? If it had the power, is it not a little remarkable that no great lawyer who was against slavery ever thought of limiting its evils by barring its products from interstate or foreign commerce?
Senator CLAPP. I do not desire to interrupt you too much, but what would you say of a proposition to bar convict-made goods
Mr. KITCHİN. I will make a note of that and come to it a little later on. If I do not, I wish you would call my attention to it again. I have looked that up somewhat.
Senator CLAPP. Very well.
Mr. KITCHIN. Now, will there be a Member of the United States Senate who will give this matter consideration who will for a moment think that the United States Government ever would have been formed if the Southern States had understood that the Congress had the power to bar their products from the markets of other States ? You will find gentlemen who will say "No; of course 60 or 70 years ago this proposition would have been held unconstitutional; but we have progressed.” I have sometimes been classed as a progressive myself, but here is the point I submit to the conscience of every man: If that clause did not contain that power 60 years ago, is it right to insist that it has the power now? In other words, if it could not have been fairly construed to contain that power a couple of generations ago is it fair to give it that construction now?
When the United States was formed, its people had rights within the United States just as one in a State had the right within its borders to do as he pleased with his property so long as he did not injure anybody else, buying and selling in whatever county he pleased. How can you come to the point that an article, sound in itself and lawfully made, can be prohibited by Congress from going to another State for lawful use? The personal rights of every man in the country were guaranteed by the fifth amendment; not his personal wrongs. The United States Supreme Court and other courts have held that the right to life, liberty, and property includes the right to buy and sell and travel and act as free men in this country. (See Ailgeyer v. Louisiana, 165 U. S., 578, 589.) This Government would have the power of the most tyrannous despot who ever cursed the world if it had the power arbitrarily to say what a man shall buy and what he shall sell and where he shall go and what he shall transport. The courts have practically held that the right of liberty includes all other rights. Now, the right to sell and deal in lottery tickets—which was a case the advocates of this bill rely upon-never existed. It was a wrong. The court so held. It was an immoral act, an immoral business. The right to sell impure foods and drugs was never a right; it was a wrong. There never was a right to sell baneful or fraudulently branded goods. There never was a right to transport a bad woman into another State for a bad purpose. They were wrongs, and acts of Congress denying them interstate-commerce privileges have been upheld.
But will it be contended by gentlemen on the other side that the right to prohibit impure foods and drugs into another State is the same as the right to prohibit pure foods and pure drugs from going into another State? One is a wrong, the other is a right. Will you rely upon the white-slave cases that sustained the Mann White Slave Act, which prohibited the transportation or securing the transportation of bad women from one State into another for immoral purposes, which never was right, and put that on an equal footing and give it equal dignity with the right of an upright, honest gentleman to pay the transportation of a woman missionary of good life and pure spirit into another State?
Listen to Justice McKenna in the case of Hoke v. United States, a white-slave case. Mr. Justice McKenna says:
The contentions (that is, against the white-slave act) confound things important to be distinguished. It urges a right to be exercised in morality to sustain a right to be exercised in immorality: *
It is the right given for beneficial exercise which is attempted to be perverted to and justify baneful exercise as in the instance stated. *
Let an article be debased by adulteration, let it be misrepresented by false branding, and ('ongress may exercise its prohibitive power.
Is that not a clear intimation that unless it is misbranded, adulterated, fraudulent in itself or injurious, that Congress may not exercise its prohibitive power?
Senator CUMMINS. Do you think it could require that these goods should be branded
Mr. KITCHIN. I doubt that.
Senator CUMMINS. Without any suggestion that they are made by child labor ?
Mr. Kirchin. I doubt that, and I might now just as well answer your question, Senator Clapp, with regard to convict-made goods. My investigation has led me to think that Congress has no power to prohibit convict-made goods from going into other States if the goods themselves are all right. Massachusetts, New York, and Ohio have very strong opinions on this case. The legislature of Massachusetts requested the opinion of the supreme court upon the proposition of the right of the State to regulate convict-made goods coming from one State to another State, and the unanimous opinion of the justices in Massachusetts in 1912 or 1913—just two or three years ago-was that the legislature of Massachusetts had no such power. In the New York case and in the Ohio case, which I cited in my argument before the Labor Committee at the other end of the Capitol, they held the same position.
The case of Schollenberger v. Pennsylvania (171 U. S., 12), which involved the validity of a State oleomargarine statute, the opinion of the court says:
The general rule to be deduced from the decisions of the courts is that a lawful article of commerce can not be wholly excluded from importation into a State from another State in which it was manufactured or grown. * * The bad article may be prohibited, but not the pure and healthy one.
In the argument that I am making my contention is that Congress has no power to regulate interstate commerce in cotton goods in that manner which takes the form of prohibition. I concede the difference between regulation by prohibition and regulation by branding. Prohibition destroys the right of a citizen (People v. Hawkins, 157
N. Y.), while his right may be preserved though cumbered with proper branding, and if branding should be applied to all articles of interstate commerce it would add weight to the difference, but before an article can be prohibited it must have some inherent vice or be intended for some vicious purpose.
Here is a case banded down on January 10, last month, in which it seems that Mr. Justice Hughes recognized that there must be something wrong with the article or in the purpose for which it is going to be used before prohibiting it. In other words, the article must be of such character as will do damage in the State in which it it goes before the goods can be barred, and must be charged with that character while it is a part of interstate commerce.
This is the case of seven cases (more or less), each containing 12 bottles of Eckman's Alterative, Fekman Manufacturing Co., owner, plaintiff in error, v. The United States, involving the pure food and drugs act. In this opinion, referring to McDermott v. Wisconsin (228 U. S., 115), he says:
And, after stating that the requirements of the act thus construed were clearly within the power of Congress over the facilities of interstate commerce, the court added that the adoption of original packages set forth in repeated decisions which protected the importer in the right to sell the imported goods was not intended to limit the right of Congress, now asserted, to keep the channels of interstate commerce free from the carriage of injurious or fraudulently branded articles and to choose appropriate means to that end."
He further says: Referring to the nature of the statements which are all within the purview of the amendment, it is said that the distinction should be taken between articles that are illicit, immoral, or harmful and those which are legitimate, and that the amendment goes beyond statements dealing with identity or ingredients. But the question remains as to what may be regarded as “illicit," and we find no ground for saying that Congress may not condemn the interstate transportation of swindling preparations designed to cheat credulous sufferers and make such preparations accompanied by false and fraudulent statements illicit with respect to interstate commerce as well as, for example, lottery tickets.
In the last volume of the Supreme Court Reports, the two hundred and thirty-eighth, page 439, in the case of the Delaware, Lackawanna & Western Railroad v. Yurkonis, the Supreme Court held that one mining coal, which coal was to be used in interstate commerce, was not himself engaged in interstate commerce. If one mining coal for interstate commerce is not subject to the power of Congress, then one manufacturing cotton goods for interstate commerce is not subject to the power of Congress under the commerce clause.
Congress has no power over manufacturing. That was held in the Sugar Trust case, the Knight case (156 U. S., 1), and it was distinctly held in Kidd v. Pearson (128 U. S., 21) that went up from Iowa, I believe. The power is over commerce, and in these cases the court clearly and most strongly stated that Congress had nothing to do with any article until it became a part of interstate commerce, until it was delivered for the purpose of shipment (Coe v. Errol, 116 U.S., 517).
Senator CUMMINS. You are referring to the case of Knight v. United States ?
Mr. KITCHIN. The United States v. E. C. Knight (156 U. S.).
Senator CUMMINS. It is pretty well understood that that case has been discredited by subsequent decisions.