Notwithstanding the serious opinion of responsible officers of government, that all this is well within the powers of Congress,1 there is no doubt that the plan is entirely beyond the scope of the Constitution, inconsistent with its provisions and with the system of government which has existed in this country since the Revolution.2

In speaking of an effort by implication to extend Federal powers derived from the commerce clause so as to control the processes of manufacture within a State, the Supreme Court said:

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"The demands of such a supervision would require, not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent. Any movement toward the establishment of rules of production in this vast country, with its many different climates and opportunities, could only be at the sacrifice of the peculiar advantages of a large part of the localities in it, if not of every one of them. On the other hand, any movement toward the local, detailed, and incongruous legislation required by such interpretation would be about the widest possible departure from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for, Congress would be confined to the regulation, not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite .; but still there would always remain the possibility, and often it would be the case, that the producer contemplated a domestic market. In that case the supervisory power must be executed by the State; and the interminable trouble would be presented, that whether

1 Report of Industrial Commission. Speech of Attorney-General Knox, at Pittsburg, copied in 36 Cong. Rec., p. 412. Report of Commissioner of Corporations, December, 1904.

* House Report No. 2491, 59th Cong., 1st Sess.

the one power or the other should exercise the authority in question would be determined, not by any general or intelligible rule, but by the secret and changeable intention of the producer in each and every act of production. A situation more paralyzing to the State governments, and more provocative of conflicts between the general government and the States, and less likely to have been what the framers of the Constitution intended, it would be difficult to imagine." 1

The establishment of Federal supremacy in commercial affairs involves, then, an alteration of fundamental relations between the States and the Federal government. Great as this change would be, the consequent alteration in the relation of the individual citizen to government is still greater.

Under the Constitution, the important personal rights of every individual, not residing in a territory or a colony, his personal liberty, family relations, and property rights, are derived from the State, not from Congress. Except when brought into connection with the army, the navy, the post-office, the tariff or internal revenue, most Americans have little actual contact with the Federal government. Because the State alone, therefore, could endanger private liberty, many and complicated provisions have been inserted in State Constitutions to secure individual freedom.

Upon the Federal government, on the other hand, few limitations have been imposed for the protection of individuals. The proposed method of trust regulation, then, which would take commercial jurisdiction from the States, where the powers of government are subject

1 Kidd v. Pearson, 128 U.S. 1, 21, 22.

to established restrictions, and vest it in Congress, free from these limitations, is the establishment of a parliamentary despotism.

Nothing can be clearer than that such a power cannot be established under the Constitution.

By the system of government which has existed under that instrument the State and the Federal governments are limited, each within its sphere. A theory of construction which would develop an unlimited Congressional power over the activities of the citizen discloses its own vice- the assumption of powers which are unlimited, only because not granted.

Examination of this subject, at the present time, centres about the commerce clause of the Constitution, and involves not only consideration of its meaning and of its place in the scheme of government, but also requires consideration of the relations between State and Federal governments; of the nature of that personal liberty upon which the fathers placed so high a value, and of the extent to which government was permitted to interfere with individual activity.

Among the powers which the Constitution vests in Congress was one whose grant few opposed and from which no apprehensions were entertained. This was "the simple power of regulating trade." " At a time when the powers given to Congress were "extorted from the grinding necessity of a reluctant people" this

1 Federalist, No. 45.

3

2 Speech of William Symmes in Convention of Massachusetts, 2 Elliot Deb. 70.

See Von Holst, "Constitutional History, 1750-1832," p. 63.

power was given by "the common consent of America." 1 Persons who opposed every other means to strengthen Congress consented to this grant. "Why not," it was asked, "give Congress power only to regulate trade?" " For the greater part of the first century under the Constitution, the construction placed upon the power thus granted was such as to justify this attitude. The power was not of an absorbing nature, nor one whose possession enabled Congress to invade either the jurisdiction of the States or the personal liberty of individuals.

Under the influence of new economic views, however, the power seems wholly to have changed character. The right to engage in foreign and interstate commerce, it is now said, is derived solely from the Federal government, and upon this ground the effort has been made to establish Federal control over all, save a few of the smallest, industrial and transportation interests of the country.

If these two views of the Constitution represented merely the doctrines of present and opposing schools of constitutional construction, such a difference of opinion upon fundamental questions would still be unfortunate. If, however, this difference be not so much between schools as between present and past; if it mark a fundamental change in the national conception of the Constitution and in the spirit of its administration, the significance of the policy toward which the country is moving

1 Speech of Robert Livingston in Convention of New York, 2 Elliot Deb. 214.

2 Speech of Gen. Thompson in Convention of Massachusetts, 2 Elliot Deb. 80.

becomes apparent; for important as undoubtedly are the economic questions whose agitation has given rise to new constitutional doctrines, the preservation of the Constitution is more important still. "There is one point," Mr. Lecky said, "on which all the best observers in America, whether they admire or dislike democracy, seem agreed. It is, that it is absolutely essential to its safe working that there should be a written constitution, securing property and contract, placing serious obstacles in the way of organic changes, restricting the power of majorities, and preventing outbursts of mere temporary discontent, and mere casual coalitions from overthrowing the main pillars of the State. In America, such safeguards are largely and skilfully provided, and to this fact America mainly owes her stability."

1

Unfortunately there seems to be a growing impatience with these very safeguards; a belief that the Constitution is not in all respects adequate to existing conditions, and that new powers should be assumed by and supported in the Federal government. The statement of this proposition is probably its best answer, for there is no general desire to question the supremacy of the Constitution, either directly or by constructions which are recognized as unsound. It is still true, as Jefferson said, that to take a single step beyond the limits which the Constitution has fixed for Congress "is to take

1 "Democracy and Liberty," Vol. I, p. 136.

2 Even as conservative a lawyer as Judge Cooley at one time entertained this view, see "Michigan," American Commonwealth Series, 346, but later changed his opinion, -see "Written and Prescriptive Constitutions,' 2 Harvard Law Review, 341. On the general subject see "The Elasticity of the Constitution," by Mr. Arthur W. Machen, Jr., 14 Harvard Law Review, 200.