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shall have power to regulate commerce with foreign nations and among the several States.” 1
These words are very general, and federal courts have decided more than 2000 cases in explanation of them, and several hundred of these cases have been appealed and decided and supported by lengthy opinions of the Supreme Court of the United States.
41. Foreign Commerce. — Congress has "power to regulate commerce with foreign nations.” Under this power Congress regulates shipping; determines numerous conditions under which vessels may fly the American flag, such as requiring a wireless equipment, life-preservers, life-boats, a definite limit to the number of passengers, and inspection of the ships; prescribes how ships must enter and leave ports-e.g., stop at quarantine stations for health inspection and have proper entry or clearance papers; and imposes other requirements too numerous to mention.
Under this power Congress has prohibited the importation of numerous articles - e.g., diseased animals or vegetables, opium except for medical purposes, obscene books, lottery tickets, adulterated and misbranded foods, articles having names or emblems simulating domestic trade marks, aigrettes, convict-made articles, white or yellow phosphorus matches, and prize-fight films.
Under this power Congress has prohibited the exportation of white or yellow phosphorus matches and has authorized the President at his discretion to prohibit the exportation of contraband of war.
42. Interstate Commerce. — Congress has power to regulate commerce among the several States. The strongest motive that led to the formation of our Union was the annoying taxes which each State placed upon the commerce of the others, hence the Constitutional Convention was prepared to give a liberal regulation of commerce to the central government.
1 Congress also has power to regulate commerce within the Indian Tribes. For example, Congress prohibits the sale or gift of liquor to Indians or even the introduction of it into Indian country. 2 See page 77.
When the Constitution was framed wagons or stage coaches naturally needed very little regulation, and slow sail boats did not present many interstate problems. The chief and perhaps the only purpose of this clause in the minds of the Constitutionmakers was to prevent the States from interfering with the freedom of commercial intercourse among themselves; it referred to the articles to be transported rather than to the means of transporting them.
However, the Supreme Court decided that the power of Congress to regulate commerce could not be confined to the
instrumentalities in use at the time of the adoption of the Constitution, but kept pace with inventions and with the growth of the country. Thus, by this liberal and progressive attitude of the court, Congress has been able to do many things through its power to regulate commerce among the several States."
Commerce Includes Navigation. — Thirty-five years after our government was established the Supreme Court was called upon to explain this commerce clause. Robert Fulton invented the steam-boat in 1807, and the legislature of the State of New York granted to Fulton and Livingston the exclusive right to run steam-boats on the Hudson River. Another person, Gibbons by name, disputed the right, and in 1824 the Supreme Court decided, in an opinion prepared by Chief Justice Marshall, that “commerce” is not only the purchase, sale, and exchange of commodities, or “traffic,” but is also “intercourse," which includes the means of traffic, at least on water, and hence includes “navigation.” So the legislature of the State of New York did not have the right to grant an exclusive privilege to any person to “navigate” her rivers, as Congress alone had been given authority to regulate commerce among the States.
Under the right to regulate .. commerce among the States ” the Courts have allowed Congress to extend its control
over “navigation " until it now controls all navigable waters within States as well as between States. For example, between New York City and Albany, the United States Government deepens the channel, lights the river, inspects the boats, requires them to carry life-preservers, limits the number of passengers; and further, a bridge could not be built across the Hudson River where navigable without permission from the federal authorities.
Commerce Includes Transportation. — The first railroads were built about 1830. Until the Civil War they were short lines,
usually within the limits of one State. Just after the War they rapidly consolidated into through trunk lines, at which time Congress began to control them. In 1887 the “Interstate Commerce Act” created the “ Interstate Commerce Commission.” The courts justified the regulation of interstate railroads under the commerce clause, saying that commerce means “ traffic,” “intercourse," and also “transportation." Under this power to
INTERSTATE TELEGRAPH LINES. control interstate “transportation " the Federal Government regulates rates for articles or persons carried from one State to another, limits the number
of hours that employees
Commerce Includes the
— The first telegraph line THE WIRELESS STATION AT ARLINGTON,
was built in 1842 and the VIRGINIA,
first telephone was
hibited at the Centennial Exposition in the year 1876. Both, when extending from one State to another, are regulated by the Federal Government inasmuch, as the courts have said,
commerce includes the transmission of messages." It likewise regulates the wireless, because by means of this device messages are transmitted.
The Right to Regulate Commerce Includes the Right to Prohibit Commerce. — Congress has conditionally excluded from interstate commerce such commodities as diseased cattle, dangerous explosives, goods and persons infected with disease, lottery tickets, and impure or misbranded foods and drugs.
It had become difficult for an honest man to compete because dishonest producers indulged in every dishonest device from misrepresenting the quantity in a package to selling fraudulent remedies for cancer. The homely squash, when doctored, flavored, colored, and attractively packed, became “canned peaches"; the apple became “preserved strawberries”; oleomargarine dyed yellow took the name of “butter"; veal became “potted chicken"; and even mineral earths have been mixed with cheap meals to produce flour. Therefore, Congress has enacted laws prohibiting the circulation in interstate trade of foods, beverages, and drugs that are misbranded as to quantity, quality, or place of production, that are injurious to health, or that make false promises as to their curative properties.
The Right to Regulate Commerce Includes the Right to Protect Commerce. The Sherman Anti-Trust Law of 1890 was enacted under the power to regulate commerce. It prohibits “every contract, combination in the form of a trust? or otherwise, or
1 The trust was originally a device by which several corporations engaged in the same line of business would combine to eliminate competition and regulate prices. This was done by creating a central board composed of the presidents or general managers of the different corporations and the transfer to them of a majority of stock from each of the corporations to be held “in trust” for the stockholders who thus assigned their stock. The stockholders received in return “trust certificates” showing that they were entitled to receive dividends on their assigned stock, though the voting power of it had