|
|
| & etc |
FEEDBACK
(C)1998-2012
All Rights Reserved.
Site last updated
13 January, 2012
|
|
|
|
A Constitutional History of the United States
Chapter LI - Interstate Commerce; Railroads; Trusts: Amendments; The Presidency; Conclusion
by McLaughlin, Andrew C.
|
When we examined the Court decisions interpreting and applying the
fourteenth amendment, we found the judiciary facing the problems which arose
from the establishment of state commissions. Whatever may be said of
constitutional theory and all the mists of legal argument, the fact is that the
nation and the states, in the later years of the nineteenth century and the
early years of the twentieth, were entering upon the commission habit. Amid all
the problems which were involved in the development of constitutional law and
governmental procedure, that fact stands forth with peculiar distinctness.
Commissions were intrusted with extensive power, granted by statutes of a
general character. Administration and practical application were in the hands
of the commissions. The fact, as in so many other instances, is of more
importance than the theory; but constitutional problems inevitably arose; for
the whole development, though not utterly without precedent, was essentially
new.
Considerable attention was given by the courts to the interpretation of
statutes, with intent to discover whether the commissions had transcended the
authority granted them; and there was, of course, the perennial question
whether they had respected due process. But there was a more elementary
problem: had the legislature improperly delegated legislative or judicial
authority and thus broken down the traditional separation of the powers or
disregarded the elements of constitutional order? And still, every passing day
made more obvious the inability of legislative bodies, by plodding along the
old route, to meet the tasks produced by the new economic conditions. It was
impossible to pass legislation so general, so explicit, and so detailed as to
leave no room for judgment in interpretation, application and enforcement.
In the later years of the last century, the courts, as we have seen,
were finding barriers against encroachments upon property rights. To condemn
and to criticize, to charge the courts with arid and unimagi-
native conservatism is an easy and comfortable occupation; but it leaves
out of consideration the difficulty of the problems of adaptation. And yet, the
Supreme Court during those years appears in most ways to have been holding back
with what now seems unnecessary persistence.[1] There were, it is
true, certain decisions which indicated that there were joints in the defensive
armor.[2] But on the whole the conservatism of the supreme bench
during that period appeared nearly invulnerable. At the beginning of the period
when the courts were or appeared to be resisting a public movement for further
social control, Congress entered upon the task which endured for a generation
— the task of regulating and properly controlling the railroads. The
decisions in the Granger Cases were important but they were not enough. The
roads engaged in interstate commerce could not be effectively regulated by
state legislation. That fact was daily becoming more evident. Mere words fail
to convey any proper impression of the confusion and the iniquity prevalent in
railroad affairs in the eighties. The building of new roads had been going on
at a rate hitherto quite unparalleled; in 1886, alone, 12,983 miles of road
were laid down.[3] Competition had reached such a state of excess
that it was destructive of actual corporate interests or at least of respect
for public well-being. Individual shippers were favored at the expense of their
rivals; discriminatory rates favored one locality and worked hardship to
another; rebates were granted in some instances so excessive and discriminatory
as to reach into the realm of the comic opera. Speculation ran riot; and while
the big shipper found means of increasing a rapidly swelling fortune, the small
shipper and the public paid the piper. The whole story is a tale so confusing,
so sordid, so wanting in the elements of merit or common sense, that we find it
difficult to understand why it took so long to establish, simplify and
rationalize the control of railway traffic in the public interest.
In 1886, the Supreme Court, after referring to the Granger Cases,
declared that it was not and never had been the deliberate opinion of the
majority of the Court that a state statute, which attempted to regulate
railroad charges within its limits for a transportation involving a part of
commerce among the states, was a valid law.[4] Unless the roads,
therefore, were to be left to their own devices in interstate business and
allowed to indulge freely in the game they were playing, Congress must act. The
next year Congress passed the Interstate Commerce Act and established the
Interstate Commerce Commission. The act declared that rates should be
reasonable and just. Rebates and discrimination between persons and places were
forbidden, as were also pooling and traffic agreements; it was declared
unlawful for any carrier to charge more for transportation, under substantially
similar conditions, for a shorter than for a longer distance over the same
line, in the same direction, "the shorter being included within the longer
distance". The Commission was authorized in special cases to relieve the
carrier from the operation of this last provision, the justly famous "long and
short haul" clause.[5]
The Commission started out bravely and accomplished something. Little by
little, however, its power for good was so whittled away by judicial decisions
that by the end of the century it had become little more than a body to collect
data and make reports. Portions of the act, indeed very essential portions, had
from the beginning proved to be difficult of enforcement; and though in 1889 it
was provided that a violation of the act was punishable by fine or imprisonment
or both, rebates and other discriminations were not easily prevented. In
construing the statute, the Court was determined to guard against the exercise
of any power not plainly granted the Commission; and in addition the justices
feared lest the Commission should so act as to exercise legislative or judicial
authority. That regulation could be laid down by Congress to apply in detail to
the whole country, and be laid down with such explicitness as to be capable of
application to every conceivable situation, was of course no more than an
iridescent dream. But as every important rule or order of the Commission was
subjected to judicial investigation before it could become effective, the
Commission was placed in the position of having to defend itself at every turn.
The procedure involved appeals, sometimes years of delay, while every possible
obstacle was thrown in the pathway of the body charged by the government with a
difficult and perplexing task.
The climax was reached in 1897, when the Court said: "It is one thing to
inquire whether the rates which have been charged and collected are reasonable
— that is a judicial act; but an entirely different thing to prescribe
rates which shall be charged in the future — that is a legislative act."
[6] Though the opinion pointed to certain powers which the
Commission could properly exercise, this authority was not satisfactory or
consoling to the public desirous of seeing a solution of the vexing problem and
an end of the iniquities of railroad managers still engaged in ridiculous
maneuvers. The people had not surrendered their faith in the virtue of
competition; they intended to make it compulsory; but they specially demanded
respect for public needs and not merely scramble for booty.
The tide of popular discontent was rising — fear of the money
power, the grasp of a few men upon the transportation systems and certain
natural resources of the country, indignation against trusts and monopolies,
all pointed to the necessity of congressional legislation for curbing
unwholesome evils. The chief influence in producing remedial legislation was,
of course, the arrogance and the misdirected zeal of the railroad authorities
themselves; for it appears to be a rule of life that the extremists defending
an outworn fortress batter down their own defenses. Certain changes in the
original act were made in 1903, at the request of the railroad managers
themselves. In his annual message of 1904, President Roosevelt said that
railroad regulation was of prime importance, and he returned to the subject the
following year. A new statute was enacted in 1906. In passing on the questions
raised by specific complaints, the Commission was given power to prescribe just
and reasonable maximum rates. Its conclusions were to have presumption of
validity. In other words, the great burden was thrown upon the roads and taken
from the shoulders of the Commission. The discussions in Congress when the act
was under consideration and, indeed, the whole controversy disclose the
essential issue — the extent to which the legislative body can delegate
its power. In 1910 an additional act was passed strengthening the Commission's
hands in certain respects.
Important judicial decisions upheld the Commission's authority, and the
principles were clearly set forth: "One question remains for discussion, the
finding of the Commission upon the character of the rate, whether it is
unreasonable as decided. Such decision, we have said with tiresome repetition,
is peculiarly the province of the Commission to make, and that its findings are
fortified by presumptions of truth, 'due to the judgments of a tribunal
appointed by law and informed by experience.' " [7] This plainly
involved a recognition of the powers of Congress to delegate power to fix
rates, and the recognition that rates so fixed would, when subjected to
judicial scrutiny, have the presumption of legality and propriety. The Court
did not, however, totally abdicate. It reserved the right under certain
circumstances not to accept the Commission's findings and rules.[8]
In 1912, its position was summed up as follows: the orders of the Commission
are final unless beyond the power which it can constitutionally exercise; or
beyond its statutory power; or based on mistake of law. An order, regular on
its face, may be set aside if it appears that the rate is confiscatory and in
violation of the constitutional prohibition against taking property without due
process of law; or if the Commission should act arbitrarily and in an
unreasonable manner.
Before long, the task of effective regulation was seen to involve more
than the mere right of Congress to regulate rates and to control interstate
traffic. For the whole process was found to be so inclusive, transportation was
so obviously national, that the states even in the management of their own
internal commerce were necessarily limited. This fact is illustrated by
decisions upholding the power of the federal Commission so to adjust intrastate
rates as not to interfere with interstate rates established by federal
authority. The existence of such a power was indicated by certain statements
made by the Court in 1913; [9] and the next year in the Shreveport
case the principle was accepted and applied.[10] At a later date,
Chief Justice Taft, giving the opinion of the Court, used these comprehensive
and conclusive words: "Commerce is a unit and does not regard state lines, and
while, under the Constitution, interstate and intrastate commerce are
ordinarily subject to regulation by different sovereignties, yet when they are
so mingled together that the supreme authority, the Nation, cannot exercise
complete effective control over interstate commerce without incidental
regulation of intrastate commerce, such incidental regulation is not an
invasion of state authority or a violation of the proviso." [11]
During the later years of the nineteenth century and the first few years
of the twentieth, the attempts to control the railroads were not meeting with
conspicuous success. Furthermore, another problem, closely associated with the
railroads but even more difficult, had forced itself upon public attention. The
process of accumulating vast fortunes had been going forward at a rapid rate.
Men gifted with shrewdness, business sagacity and a determination to be rich
and powerful, took advantage of highly developed transportation systems, the
natural resources of the land and the impressive expansion of the nation, to
build up a system of industrial control so extensive and so remunerative that
the stories of Croesus or Monte-Cristo appear like plaintive tales of
penury.
One fact stands forth with especial clearness: the very extensive
control in the hands of one man or a single group of men demonstrated plainly
the fact that industry was in some cases so nationalized that only national
authority could regulate it. The men who were thus engaged, or beginning to be
engaged, in this constructive process, this articulation, this coordination,
were creating a structure which by its very nature subjected itself to
governmental administration or at least oversight. It used to be said that they
were preparing the way for socialism — not by the way of revolt, and of
course not intentionally, but as a natural consequence of what they had
themselves accomplished in so combining natural resources, transportation and
industrial activity as to simplify the task of governmental ownership. Whether
that conclusion be sound or not, the development did bring attempts at
governmental control and restraint; and the future is to decide whether control
is to be expanded and whether restraint is to be followed by ownership. In one
way, regulation appears to be a process antagonistic to a further approach
toward socialism — or, if the reader wishes a different term, governmental
ownership of productive enterprises — because regulation may make complete
ownership and complete direction needless. On the other hand, if it fail, it
may naturally lead to the forced abandonment of private ownership and control.
The main matter of importance to us, as students of history, is, however, that
the skill and energy and constructive power of industrial magnates brought into
being a high degree of correlation and consolidation, and the onlooker was
inevitably led to question whether the nation would be in the hands of a few
industrial monarchs or be governed by popular vote.
So, soon after the establishment of the Interstate Commerce Commission,
came a demand for the curbing of trusts, a name meaning in common parlance any
large industrial enterprise which because of its power was able to crush
smaller competitors and subject the public to unreasonable
prices.[12] The demand resulted in the passing of the Anti-Trust or
Sherman Act in 1890. Naturally the constitutional basis for the act was the
interstate commerce clause. It declared every contract or combination or
conspiracy in restraint of interstate or foreign trade or commerce to be
illegal. It also declared it illegal to monopolize or attempt to monopolize any
part of interstate or foreign commerce. Violation of the act was made a
punishable offense. The act lay on the statute book for several years without
serious ruffling of its pages.
Most of the numerous decisions of the courts on this matter are not
within the field of constitutional law, save as any construction of a statute
may be considered as having constitutional significance. Once it has been
accepted that the power to regulate interstate commerce involves the power to
make combinations and monopolies illegal and to declare certain practices
punishable, the main constitutional principle is acknowledged. But the history
of the attempt to make the antitrust legislation effective is of importance;
the public criticism of judicial decisions, whether such criticism be
technically valid or not, and the difficulties encountered in the application
of law are not outside the field of constitutional history. In the whole
matter, however, not the technical power to legislate, but the fact of
legislation, which was an extension of the former actual activities of the
nation, is the crucial matter. Everywhere we turn we find the broadening of
national authority and, as a matter of reality, the comparative subordination
or submergence of the states.
Five years after the passage of the act, the Supreme Court, in the Sugar
case, declared that manufacturing within the limits of a state was not within
the field of interstate commerce and that the act did not authorize restraint
or prevention of contracts relating exclusively to the acquisition of
refineries in a state, the object of which was private gain but not through the
control of interstate or foreign commerce.[13] It appeared for a
time that in light of this decision it would be impracticable to make
anti-trust legislation effective; but not long thereafter, there was a series
of decisions which gave the act effect and forecast further results. In the
Trans-Missouri Freight case, a contract between competitive railroads, having
the effect of restraining trade, was held to be within the provisions of the
Sherman Act.[14] That conclusion was of prime importance. In 1899,
the Court held illegal an association of pipe manufacturers who had entered
into an arrangement whereby there should be no competition between them in
certain areas embracing in the aggregate a large portion of the
union.[15] This combination presented a condition quite easily
distinguishable from that presented in the Sugar case; the association was
plainly a contrivance for the elimination of competitive interstate prices.
Then came the Northern Securities case,[16] declaring illegal a
holding company which, through the ownership of stock of two companies,
controlled two railroads which were natural rivals. This was not merely an
arrangement for the investment of capital but a plan so to manage two roads as
to eliminate uncomfortable competition.
There followed in the next few years the dissolution of certain big
combinations — the so-called Beef trust,[17] the Standard Oil
trust,[18] and the American Tobacco trust.[19] Whatever
may have been the public zeal for drastic action, this at least may be said:
the act in question and the important decisions of the Court made plain the
fact that Congress could effectively prohibit combinations or conspiracies
which, actually within the sphere of interstate commerce, interfered with
reasonable competition and freedom of communication. The justices, however,
held different opinions concerning the meaning of "restraint of trade" and
concerning the application of the prohibitions of the statute. In the Standard
Oil case, Chief Justice White, giving the opinion, announced the "rule of
reason." The same year, in the Tobacco Trust case, the Chief Justice,
expounding this doctrine or principle, gave the following explanation: "It was
therefore pointed out that the statute did not forbid or restrain the power to
make normal and usual contracts to further trade by resorting to all normal
methods, whether by agreement or otherwise, to accomplish such purpose. In
other words, it was held, not that acts which the statute prohibited could be
removed from the control of its prohibitions by a finding that they were
reasonable, but that the duty to interpret which inevitably arose from the
general character of the term restraint of trade required that the words
restraint of trade should be given a meaning which would not destroy the
individual right to contract and render difficult if not impossible any
movement of trade in the channels of interstate commerce — the free
movement of which it was the purpose of the statute to protect."
[20]
The rule of reason, which now became a standard principle, caused some
leaders of industry to charge that the result was to leave the whole subject in
vagueness and uncertainty; and it was also said by other critics that the Court
was intent upon reading into the statute its own notions of what was beneficial
and what was harmful. Justice Harlan, concurring in part and dissenting in
part, said, "After many years of public service at the National Capital, and
after a somewhat close observation of the conduct of public affairs, I am
impelled to say that there is abroad, in our land, a most harmful tendency to
bring about the amending of constitutions and legislative enactments by means
alone of judicial construction." He declared that the majority of the Court had
in effect said, "You may now restrain such commerce, provided you are
reasonable about it...." [21] That he pronounced to be a clear
instance of judicial legislation.
Two acts passed by Congress (1914) — the Clayton Act and the
Federal Trade Commission Act — were additional attempts to compel the
abandonment of unfair methods of competition and to make the anti-trust
legislation effective. They embodied President Wilson's theories which aimed to
bring in a new industrial order shorn of the abuses of the past. Only a very
bold man would try to indicate briefly, or even in many words, the effect of
these measures. They are mentioned here only as an indication of the prevailing
desire to improve industrial conditions and business practices. At the present
writing, the whole subject is undergoing such radical alterations — if not
in constitutional law, at least in the public mind — that it is difficult
to get a proper perspective; an effort to distinguish the headlands marking out
with any clarity the main outlines of historical progress is peculiarly
difficult. So futile appear to be the attempts of the past, or at least so far
from satisfying the public demand, that it seems as if the whole history of
trade-regulation under the interstate commerce power will in the future be
looked upon as valuable only because it illustrates the difficulty of the
problem, and because the attempts proved to be the forerunners of further and
more drastic methods. The whole movement, which purposed to secure social
justice and economic freedom by insisting upon competition and by reliance upon
the ameliorating effect of compulsory rivalry, appears to be nearing its close.
In the public affection, planning seems to be taking the place of compelled
competition; restriction is to be supplanted by guidance and, mayhap, control
or even public ownership.[22] Nationalism is so real and its
realities are so dominant, that any microscopic investigation of the commerce
clause of the Constitution is likely to be worthless; and we are probably right
in assuming that any method, deemed to be constitutional, will be used if
necessary to correct — or seek to correct — what are thought to be
the evils of the commercial world. What can be done under the shadow, or in the
light, of the commerce clause only the venturesome would dare to predict.
With these few words bearing upon the character and the interpretation
of the Interstate Commerce Acts and the Sherman Act, we must be content; but
the reader must not be left with the impression that the courts were not busy,
without reference to those particular statutes, in passing upon various phases
of interstate commerce law. And yet in a general way the principles laid down
by the Court, from the time of Gibbons v. Ogden (1824) to and including
the Cooley v. Port Wardens case (1851), stand on the whole unaffected by
the passing of time, in so far as the earlier cases mark out the broad lines of
demarcation between intrastate commerce on the one hand and interstate and
foreign commerce on the other.[23] The later cases largely involved
the application of these principles; fine distinctions were drawn, so fine that
the lay reader may at first sight not see them at all.[24] But if
distinctions were at all times perfectly obvious, there would be little use for
courts.[25]
Congress in recent years has exercised by explicit and affirmative
legislation the power of regulating interstate commerce, and has gone so far as
to prohibit altogether the transportation of certain articles. In doing so, it
has aimed to protect or enhance the well-being of the people and has done this
so extensively that it is not uncommon to speak of federal police power; but
technically this term must be considered a misnomer; for the powers of
legislation must in theory arise from specific or implied grant by the
Constitution itself; the Constitution makes no grant of the police power to
Congress. The extent of the power in such matters was announced with particular
clarity in 1913: that the power over transportation among the several states
"is complete in itself, and that Congress, as an incident to it, may
adopt not only means necessary but convenient to its exercise, and the means
may have the quality of police regulations." [26] The Court
also said, "Our dual form of government has its perplexities, ... but it must
be kept in mind that we are one people; and the powers reserved to the States
and those conferred on the Nation are adapted to be exercised, whether
independently or concurrently, to promote the general welfare, material and
moral." It has been held, therefore, that federal legislation may forbid the
transportation from one state to another of stolen automobiles, lottery
tickets, adulterated articles, obscene literature, prize-fight films, and women
for immoral purposes.[27]
So inclusive and extensive was the power of regulation as recognized by
the Court, that there was a belief, by no means baseless, that an act excluding
from interstate transmission articles made in factories employing child labor
would be upheld. But it was declared invalid as a distinct interference with
the police power of the states.[28] Four justices dissented —
it was one of the four to five decisions which have been made with regrettable
frequency in recent decades. Inasmuch, said the dissenters, as the Court had
recognized congressional authority to forbid interstate transmission of various
articles believed to be harmful, there should be no hesitation about upholding
an act directed against an evil generally condemned, "the evil of premature and
excessive child labor." The majority, however, made a distinction between the
act in question and such other legislation as had been held valid: "In each of
these instances the use of interstate transportation was necessary to the
accomplishment of harmful results. In other words, although the power over
interstate transportation was to regulate, that could only be accomplished by
prohibiting the use of the facilities of interstate commerce to effect the evil
intended. This element is wanting in the present case."
After the decision announcing the invalidity of the child labor act,
ostensibly an exercise of the power to regulate interstate commerce, Congress
resolved to use its taxing power for the same purpose. The statute, it seemed,
would be more acceptable to the Court than the previous one; for in various
cases, tax laws which had the real purpose of prohibition and not revenue had
been upheld.[29] But the act like its predecessor was pronounced
invalid.[30] The Court found a difference — substantial enough
to be visible to those desiring to see it — between the act in question
and earlier acts in which the broad scope of the taxing power had been
recognized; for the statute, now declared void, appeared to make plain on its
very face that its object was repression rather than revenue. The decision
therefore did not, in the Court's mind, contravene the principle that the Court
would not enter upon an examination of motive or reject an act because there
might be a purpose auxiliary to the main intent, if the act on its face and in
its general tenor appear to be an exercise of undoubted congressional
power.[31] If the justices are to be criticized for their stand and
charged with obstructing the extirpation of an evil, something may also be said
of the moral impropriety of a government's attempting to accomplish its purpose
by a subterfuge; everyone knew that the purpose of the act was to stamp out
child labor. In other words, legislative artifice is constitutionally and
politically immoral, if there is any force remaining in the old belief that
there should be a government of laws and not of men and that governments are to
be limited by supreme law, and if federalism as distinguished from centralized
nationalism is to survive. But judicial decision did not end the matter. In the
flood of ideas and proposals for the change of laws and the Constitution
itself, came a proposed amendment to the Constitution giving Congress power to
regulate and to prohibit labor of persons under eighteen years of age (1924).
At the present writing the amendment has not been ratified.
It used to be taken for granted that the amending of the federal
Constitution was so difficult and the process so elaborate that there could be
no reasonable hope of alteration unless it was the consequence of an
earth-shaking emergency. Only the thunders of civil war, it was said, had
produced any change of vital importance since the beginning of the government.
The first third of the twentieth century proved this belief was not
well-founded. During that period six amendments were adopted.
The sixteenth amendment gave Congress power to lay and collect taxes on
incomes, from whatever source derived, without apportionment among the states
(1913). The movement which had been on foot for a generation had reached its
goal. Acting upon the authority thus granted, Congress levied a graduated tax,
and to this there could be no constitutional objection. The Constitution
declares that all duties, excises and imposts shall be uniform throughout the
United States, but a tax is held to be uniform when it has the same force and
effect in every place where the subject matter is to be found.[32]
The various acts passed by virtue of this grant of power are supremely
important. The power to tax large incomes and to tax them heavily, as well as
to exempt other incomes altogether, is of so much importance and so likely to
have influence on economic and social conditions, that the significance of the
amendment is apparent without extended comment. As a matter of plain fact, it
rivals in importance the first section of the fourteenth amendment; and,
indeed, if we consider all its possible effects, it may be considered the most
far-reaching addition to the Constitution in the last hundred and forty years.
The student of society, viewing our whole taxing system, is inclined to look
with misgivings on a policy which has the effect of relieving many millions of
people of any consciousness that they are carrying the expense of government.
But on the other hand, the amendment furnished one method, which has been in
some degree effective, of remedying the evil of gross inequalities in the
distribution of wealth; and without some process directed to that end and
reasonably adapted to social well-being and political order, democracy may find
difficulty in keeping alive. These comments, however, are directed to questions
of legislative policy, not to problems of constitutional power.
The seventeenth amendment provides for the popular election of senators
(1913). The purpose was doubtless to deprive political partisans of the
opportunity to use corrupt methods of influencing state legislatures and also,
perhaps, to make certain the selection of men to the Senate who would
immediately represent the public and the public interest. There was probably
the further hope of ennobling the character of the Senate by the introduction
of men of superior quality. The people were now prepared to reject in toto the
remnant of the old trust in the filtering process as a method of setting wisdom
on high. The movement producing this amendment was like that which made
effective changes in popular government in the Jackson period and the years
immediately preceding Jackson. That these aims have all been realized, may well
be questioned or passed over without serious discussion. The old-fashioned
battles in the legislatures have, of course, disappeared; and thus one scandal,
which not infrequently had mocked at popular government, was disposed of.
Lifting from the shoulders of state legislatures the burden of electing
senators ought in theory to have relieved the legislators from domination by
the national parties; men chosen by the people of the state could henceforth
divide as they might wish on purely state issues; but there is little evidence
of such a result. Allegiance to national parties has proved too strong to be
effectively resisted.
The manufacture and transportation of intoxicating liquor was prohibited
by the eighteenth amendment (1919). Before its ratification, nearly all the
states had enacted prohibition statutes, some of them at a much earlier time.
It cannot be said that the amendment was cast into the face of an unsuspecting
public. Prohibition had a sorry history. But the amendment presented no very
serious trouble to the Court. Able attorneys argued with earnestness and
apparent sincerity, but without avail, in attempts to obtain a decision
declaring the amendment unconstitutional. Their arguments were based largely on
the untenable assertion that there are certain implied limitations on the
amending power — practically, therefore, a declaration that the people of
the United States would not have adopted the Constitution in 1788, had they
imagined that their remote posterity would find a way of changing the structure
of the union in any vital particular. In the most important case, the Court
disposed of the arguments against the validity of the amendment and did so in a
few brief paragraphs, without extensive discussion.[33] The
amendment was repealed by the adoption of the twenty-first amendment in 1933,
the only amendment, since the formation of the government, which was ratified
by state conventions rather than by legislatures. Its second section grants to
the national government, not only the power but also, presumably, the duty to
see that state prohibition laws or other acts restraining the use and delivery
of intoxicating liquors are not impaired or rendered useless by the
transportation of the liquors in the course of interstate commerce. Women were
given the suffrage by the nineteenth amendment (1920). The subject had been
under periodical discussion for over fifty years. Attorneys had the courage to
ask the Court to declare the amendment unconstitutional, once again asserting
the existence of an implied restriction on the amending power. But naturally
the Court could not accept this doctrine.[34] There is something
amusing in this strange situation: for years, there had been insistent
criticism and complaint because the Court was not ready to recognize the
validity of legislation violating in the opinion of the justices the principle
of due process; there had been a demand freely and forcibly expressed to the
effect that people, acting through their legislative bodies, should have what
they wanted and not be continually held in check by constitutional limitations
enforced by courts. And yet, in the cases above referred to, we find persons
enthusiastically proclaiming the inability of the people to change the
Constitution itself, if the change be unpleasant or contravene what litigants
may think to have been the intention of the men of the eighteenth century.
The twentieth amendment (1933) provides that terms of office of the
president and vice-president shall begin on the twentieth day of January, and
the terms of members of Congress on the third. The long period of uncertainty
between the election of a president and the beginning of his term of office
— a period which at times was little less than an interregnum — was
thus abandoned. And there was ended also the power of Congress to legislate for
several months after a new Congress was chosen by the people. That the
inconvenience of the old method — and much more than mere inconvenience
— should have lasted for over one hundred and forty years is an indication
of the strange conservatism of a progressive people.[35] Of
importance also is the provision for filling the presidential office in case of
death of the presidentelect, and if no president is chosen or has failed to
qualify before the beginning of the presidential term.
The most evident fact in the constitutional history of the United States
in the last thirty or forty years is the expansion of the actual activities of
the national government.[36] The building up of the departments at
Washington and their continuous operation present a picture of great interest.
It is impossible to describe, and much more difficult to define, the
bureaucratic system, or to indicate without minute statement the extent to
which the government has taken over what by any earlier conception would have
been considered the duty and the power of the states alone. The intrusion of
the hand of the central government is plainly seen in the granting of subsidies
to the states and in the oversight of expenditures as well as in the
enforcement of certain acts.
Most of the congressional measures of this character — if one
attempts to find a constitutional basis — appear to rest upon the power of
Congress to regulate commerce and the power to appropriate
money.[37] The fact of developing centralized control or direction
is the main thing. The increase of the annual expenditures is enough in itself
to demonstrate the realities of the situation.
In all this expansion of the actual activities of the federal
government, we see of course the tendency exhibited by all the governments of
the nation to do many things which in earlier years were left to the individual
or left undone altogether. Governments both state and national have entered
upon undertakings quite beyond the old fields of governmental practice. But the
tendency to rely upon the national government to do things which were within
the scope of state authority is obvious. The result is that, though federalism
still exists as the theoretical structure of the union, it has lost ground in
the public consciousness. The desire to get things done, and to get them done
quickly, induces people to bring pressure upon the central government rather
than rely on the spontaneous action of the states. There has been in recent
decades a tendency to look upon doubts of constitutional authority, and
especially the constitutional competence of the national government, as mere
somber and senile legalistic trifling. Many persons are ready to throw their
individual or local responsibilities on the shoulders of a government removed
from their very immediate control. The underlying sense or sentiment of the
people is in reality national, not local. State pride and state feeling of
local authority have greatly diminished.
We must, naturally, take into full consideration the reality of the
situation: national industrial unity; the fact that in the modern world neither
a state nor an individual can live an isolated life; the states as they now
exist are bounded by surveyors' lines; and though there are sectional
differences and sectional interests, the particular state, as a rule, has no
personality based on its physiography, its peculiar character, or its
traditions. Federalism, therefore, as a system of political order, has been
weakened, perhaps is beyond repair. To the reader such generalizations as these
are probably perfectly obvious.
To realize the full significance of what has taken place in the passing
decades, we need to look back to earlier times. Jefferson's famous inaugural
address, given at that dramatic moment when he took the oath of office
administered by John Marshall, contains this passage: "Still one thing more,
fellow-citizens — a wise and frugal Government, which shall restrain men
from injuring one another, shall leave them otherwise free to regulate their
own pursuits of industry and improvement, and shall not take from the mouth of
labor the bread it has earned." That was the sentiment of democratic
individualism with which the nineteenth century began. Hamilton and Madison,
defending the new Constitution when presented to the states for adoption, found
it necessary to combat the charge that the new system would result in the
consolidation of the union, or, to use the words of recent days, that a unitary
state would be ultimately founded on the ruins of the federal state. Both of
these statesmen believed that natural tendencies would support the authority
and vigor of the individual states: "It will always be far more easy for the
state governments to encroach upon the national authorities," said Hamilton,
"than for the national government to encroach upon the state authorities. The
proof of this proposition turns upon the greater degree of influence which the
state governments, if they administer their affairs with uprightness and
prudence, will generally possess over the people...." [38] Neither
of these statesmen could reckon with the railroad, the telegraph, the
automobile, and the radio or with the new ethos of the people —
that spirit or essence to which governmental forms ultimately adapt themselves,
even if the spirit be one of heedlessness.
In the early years of the twentieth century, Theodore Roosevelt
expressed by word and deed the belief in the necessity for effective
governmental activity and for the exertion of national authority which should
be exercised fearlessly. Just what he meant by "new nationalism" is not
altogether easily gathered or expressed; but certainly he did not wish to see
the welfare of the people — as he conceived that welfare to be —
jeopardized by any minute legalistic doctrine concerning the respective fields
of state and national power; and he associated his principles with his belief
in the duty of the president to act for the public good. In those days there
was frequent reference to the "twilight zone" — the area within which the
state could not work effectively and into which the federal government could
not or might not enter.[39] In 1910, after retiring from the
presidency, he used in a public address the following words: "The state must be
made efficient for the work which concerns only the people of the state; and
the nation for that which concerns all the people. There must remain no neutral
ground to serve as a refuge for lawbreakers, and especially for lawbreakers of
great wealth, who can hire the vulpine legal cunning which will teach them how
to avoid both jurisdictions.... The New Nationalism puts the national need
before sectional or personal advantage. It is impatient of the utter confusion
that results from local legislatures attempting to treat national issues as
local issues.... This New Nationalism regards the executive power as the
steward of the public welfare...." [40]
In 1907, three years before this speech was made, the Supreme Court had
been called upon to meet an argument connected with this general theory of
sovereign and inherent power in the national government. This argument, the
Court said, was substantially this: "All legislative power must be vested 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." This theory was
unacceptable: "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." [41]
Mr. Roosevelt, it will be noticed, connected his "new nationalism" with
the power and the duty of the president as the steward of the public welfare.
In an earlier chapter of this work which dealt with Jackson and the
presidential office, reference was made to the theories of Theodore Roosevelt,
who acted, as he said, on the Jackson-Lincoln theory of the presidency. We must
consider his position an indication not alone of his personal ideas but also
partly of the real, and perhaps we can say inevitable, development of the
presidential office. In some respects the development was associated with the
increase in national authority, to which we have already pointed. But it is
difficult to trace with any degree of accuracy the growth of the office in the
last hundred years; the history of the office demands a volume rather than a
paragraph. The line of growth was not straight and the upward curve was far
from uniform. The extent of actual presidential authority or, more correctly,
presidential influence and direction, have varied as different incumbents came
into office; actual directive force has been affected or created by
circumstances and most of all by the personality of the president himself. At
times he has been the center of public attention and even the mainspring of
governmental action. At other times, his influence has not been conspicuous.
Such additions, however, as are made to the office at one time are not likely
to be entirely lost. In the hands of a man capable of wielding the powers
normally within his grasp, the office is one of immense power. And still,
despite recession and accretion of influence and authority, one fact stands
forth fairly clearly: a president's power to shape legislation and to direct
the course of government rests on his proper gauging of public opinion, in his
ability to appeal skillfully to popular sense and sensibility. To this extent
democracy has thus far proved faithful to itself and has battled successfully
in its own defense.
The duties of the executive department as a whole increased greatly
during the first quarter of the present century, because the national
government was entering upon new fields; but we are dealing here chiefly with
the president's power to guide or form legislative policy. At times, he has
appeared to be assuming the role of a prime minister initiating legislation and
attaining his purposes. The strength of his position has been maintained by his
veto, by his power to appoint and remove officials, by his unique opportunity
to appeal for public support, and by the fact, as Jackson's career illustrated
a hundred years ago, that he is the single representative of the whole people.
A president, with the people behind him, can go far in subjecting Congress to
his will.[42]
If we may base a judgment upon the recent experiences of European
states, we are justified in assuming that democratic government is peculiarly
endangered, not so much by the intrigues of ambitious leaders hungry for power,
as by legislative inefficiency, by interminable debates of which the people
grow weary, by the existence of many parties, by petty objections and crafty
obstruction, by blocs and factions, by party incoherence and consequent absence
of assignable responsibility. The two-party system, which has fairly well
maintained itself in our history, may not be the best conceivable system; but
the history of the modern world appears to make plain that it is the best
arrangement as yet devised for assuring orderly development and reasonable
stability of popular government. Many people have criticized parties and have
become restless because of the prolonged and often futile debates of party
spokesmen in Congress; but we can only with difficulty imagine the condition
which would ensue, if there were eight or ten competitive groups, each seeking
its own advantage and all of them making systematic legislation nearly
impossible. Minor parties, which are commonly composed of enthusiasts for
particular reforms, have played at times an important role, because they have
given definite shape to certain ideas and supported them by organized effort.
In some cases they have compelled attention to vital issues, for a third-party
platform is intended for use and not merely for exhibition. But so strong has
the two-party system been and so tenacious of its own life, that one or both of
the major parties were likely to pilfer from the third party portions of its
programme — such portions as appeared to be attracting favorable public
attention. For a party does not live on sentiment alone, but on the bread of
office, and if it wishes to maintain its own vitality, it must absorb strength
where it may be found.
As we close this work covering in outline the history of nearly two
hundred years, we are led to reflect upon the obvious. The constitutional
system, which, when it was established, derived its substance from the
experiences and the efforts of previous centuries, has survived. In this modern
world, that simple fact is an achievement. Formed for less than four million
people living in a narrow area along the coast, it has been adapted to the
needs of thirty times that number occupying half a continent. If federalism,
democracy, and individual liberty are drowned in the torrent and whirlpool of
the future because men are found incompetent to govern themselves, the
historical fact remains — for a hundred and fifty years the Constitution
lasted as the fundamental law of a successful people. Only the
un-historical-minded person, fretted by his present and immediate ills, will
underestimate this fact. He may well call to mind the words of Jefferson, who
at the opening of the nineteenth century had the boldness to pronounce his
faith in America as "the strongest Government on earth.... Sometimes it is said
that man can not be trusted with the government of himself. Can he, then, be
trusted with the government of others? Or have we found angels in the forms of
kings to govern him? Let history answer this question." Since these words were
spoken, ancient dynasties and old monarchical systems have disappeared; new
monarchies have risen and fallen; and the American constitutional system still
stands.
[1] It is not an unimportant fact that the following cases
were all decided within a period of five years, 1894-1890; the Sugar case,
United States v. E. C. Knight Co., 156 U. S. 1; Reagan v.
Farmers' Loan and Trust Co., 154 U. S. 362; the Income Tax case, Pollock
v. Farmers' Loan and Trust Co., 157 U. S. 429, 158 U. S. 601; Smyth
v. Ames, 169 U. S. 466. And what shall be said about Allgeyer v.
Louisiana, 165 U. S. 578? To a student conversant with the constitutional
history of England or the history of America for a hundred years after the
adoption of the Constitution, it seems strange to point to this case, which
staked out the wide field of individual liberty, as an example of judicial
conservatism; but in the new conditions, it may perhaps be so listed as the
basis of later cases of a conservative character, especially Lochner v.
New York.
[2] For example, Holden v. Hardy, 169 U. S. 366
(1898), the hours of labor case, which opened the way for later decisions
accepting the validity of state statutes limiting hours of labor.
[3] "The decade of the eighties, so far as common carriers
are concerned, was primarily characterized by new railroad construction. Over
70,000 miles of line were built in ten years...." W. Z. Ripley, Railroad
Rates and Regulation, p. 27.
[4] Wabash, St. L. and Pac. Ry. Co. v. Illinois, 118
U. S. 557 (1886).
[5] "In one respect the law of 1887 marks a profound
revolution in both commercial theory and practice. Its provisions concerning
equality of rates to all classes of shippers denote a great moral uplift in the
business standards of the country." Ripley, op. cit., p. 454.
[6] Maximum Freight Rate case (Interstate Comm. Com.
v. Cincinnati, N. O. and T. P. R. Co.), 167 U. S. 479, 499. It should be
noticed that the Commission did not pretend to prescribe a general schedule of
rates, but it ordered the road to desist from charging certain prices, under
certain circumstances, and not to charge more than a named price which the
Commission deemed reasonable. It was quite apparent that without some such
power the Commission in certain exceedingly important respects would be nearly
or quite ineffective. See also the Social Circle case (Cincinnati, N. O. and T.
P. R. Co. v. Interstate Comm. Com.), 162 U. S. 184, and especially the
remarks, 196-197 (1896).
[7] Interstate Comm. Com. v. Chi., R. I. & Pac. R.
Co., 218 U. S. 88, 110 (1910), referring with approval to Ill. Cent. R. Co.
v. Interstate Comm. Com., 206 U. S. 441, 454 (1907), where the Court
said, "And the findings of the Commission are made by law prima facie
true."
[8] Interstate Comm. Com. v. Union Pacific R. R. Co.,
222 U. S. 541, 547 (1912).
[9] Minnesota Rate Cases, 230 U. S. 352, 399, 420, 433
(1913).
[10] Houston, E. & W. Texas Ry. Co. v. United
States, 234 U. S. 342, 354 (1914). "It is manifest that the State cannot fix
the relation of the carrier's interstate and intrastate charges without
directly interfering with the former, unless it simply follows the standard set
by Federal authority." Another interesting illustration of the way in which the
national character of commerce was made apparent was the decision of the Court
that a state railroad commission could not order through interstate trains to
stop at certain stations if local facilities were adequate. Atlantic Coast Line
v. Wharton, 207 U. S. 328 (1907).
[11] Wisconsin R. R. Comm. v. C., B. & Q. R. R.
Co., 257 U. S. 563, 588 (1922). "In solving the problem of maintaining the
efficiency of an interstate commerce railway system which serves both the
States and the Nation, Congress is dealing with a unit in which state and
interstate operations are often inextricably commingled. When the adequate
maintenance of interstate commerce involves and makes necessary on this account
the incidental and partial control of intrastate commerce, the power of
Congress to exercise such control has been clearly established." Dayton-Goose
Creek Ry. Co, v. United States, 263 U. S. 456, 485 (1924).
[12] The early conspicuous combination, the Standard Oil
trust, was a trust in the technical sense. Centralized control of a number of
corporations was established. "Such a 'voting trust'", well known to the
corporation lawyer, is of course a trust in the technical sense, involving a
legal title in trustees who are bound to exercise it for the benefit of the
cestuis qui trustent. Because the Standard Oil combination was so
notorious, and because it appeared for a time as if a large number of great
combinations would follow this form of organization, the term "trust" came to
be popularly used as a generic term to describe all large combinations." J. A.
McLaughlin, Cases on the Federal Anti-Trust Laws of the United States,
pp. 20-21.
[13] United States v. E. C. Knight Co., 156 U. S. I
(1895). "Contracts, combinations, or conspiracies to control domestic
enterprise in manufacture, agriculture, mining, production in all its forms ...
might unquestionably tend to restrain external as well as domestic trade, but
the restraint would be an indirect result.... Ibid., 16. The combination
"included 98% of the then existing sugar refining capacity of the country." J.
A. McLaughlin, op. cit., p. 25. "Whether or not the blame for this
decision is attributable to the Department of Justice, or to the Courts, the
fact was that it inhibited practically all prosecutions of industrial
combinations during nearly all the remainder of the first decade after the
Statute." Ibid., p. 25.
[14] United States v. Trans-Missouri Freight Ass'n.,
166 U. S. 290 (1897).
[15] Addyston Pipe & Steel Co. v. United States,
175 U. S. 211 (1899).
[16] Northern Securities Co. v. United States, 193 U.
S. 197 (1904). This was a very important case, and four justices dissented.
Justice White, reading a dissenting opinion in behalf of the dissentients, said
that Congress was without power to regulate the acquisition and ownership of
the stock and declared that if there were any such power in Congress it had not
been exercised by the Anti-Trust Act. Justice Holmes also dissenting, with the
concurrence of the other three, said he did not expect to hear it maintained
that Mr. Morgan could be sent to prison for buying as many shares as he liked
in the two railroads; and he also said that if the statute were to be construed
with the literalness, which appeared to be asked for, then a partnership
between two stage drivers who had been competitors in driving across a state
line would be a crime.
[17] Swift and Co. v. United States, 196 U. S. 375
(1905).
[18] Standard Oil Co. v. United States, 221 U. S. 1
(1911).
[19] United States v. American Tobacco Co., 221 U. S.
106 (1911). Notice, however, United States v. United States Steel Corp.,
251 U. S. 417, 451 (1920), where the Court said, "The Corporation is
undoubtedly of impressive size and it takes an effort of resolution not to be
affected by it or to exaggerate its influence. But we must adhere to the law
and the law does not make mere size an offence or the existence of unexerted
power an offence." The Court found neither a monopoly nor the use of improper
methods.
[20] United States v. American Tobacco Co., 221 U. S.
106, 170-180 (1911). The general terms used in the statute left "it to be
determined by the light of reason, guided by the principles of law and the duty
to apply and enforce the public policy embodied in the statute, in every given
case whether any particular act or contract was within the contemplation of the
statute." Standard Oil Co. v. United States, 221 U. S. 1, 64 (1911).
Fourteen years before this, White, dissenting and supported by three justices,
pointed out the distinction between reasonable and unreasonable restraint.
United States v. Trans-Missouri Freight Ass'n., 166 U. S. 290, 343, 347
ff. (1897).
[21] Standard Oil Co. v. United States, 221 U. S. 1,
105, 102 (1911). There was much comment — favorable and unfavorable —
in the public press and among legal writers.
[22] "Students of the Anti-Trust Laws seldom consider them
ideal. There is an occasional exception.... But economists and legal students
are insisting that they represent a certain minimum protection of the public
interest subject always to reexamination and modification by legislation or
court judgment, which should be retained in the absence of any alternative
method of control. Where competition does not work, public control of some sort
or public ownership should be substituted." J. A. McLaughlin, op. cit.,
p. 711.
[23] Illustrations are cases bearing on the original package
doctrine: Leisy v. Hardin, 135 U. S. 100 (1890); May & Co. v.
New Orleans, 178 U. S. 496 (1900); Austin v. Tennessee, 179 U. S.
343 (1900); Askren v. Continental Oil Co., 252 U. S. 444 (1920).
[24] Take, for example, two cases, Brennan v.
Titusville, 153 U. S. 289 (1894), and Emert v. Missouri, 156 U. S. 296
(1895). In the former an ordinance requiring a license of any person soliciting
in the city orders for goods was held invalid, if applied to a person
soliciting orders for goods to be shipped into the state. But in the latter
case, if the person carried with him the articles and offered them for sale,
demanding a license is not an interference with interstate commerce. See also
Howe Machine Co. v. Gage, 100 U. S. 676 (1880).
[25] Justice Holmes, giving the opinion of the Court in a
case involving the police power, states with his usual succinctness the method
by which courts reach conclusions: "With regard to the police power, as
elsewhere in the law, lines are pricked out by the gradual approach and contact
of decisions on the opposing sides." Noble State Bank v. Haskell, 219 U.
S. 104, 112 (1911).
[26] Hoke v. United States, 227 U. S. 308, 323 (1913),
and cases cited. The italics not in the original. Naturally congressional power
in the District of Columbia and the territories includes the police power.
[27] Examples of the exercise of "police power," incidental
to or growing out of specifically granted power, were cited in a decision in
the federal circuit court: "Congress has enacted a safety appliance law for the
preservation of life and limb. Congress has enacted the anti-trust statute to
prevent immorality in contracts and business affairs. Congress has enacted the
live stock sanitation act to prevent cruelty to animals. Congress has enacted
the cattle contagious disease act to more effectively suppress and prevent the
spread of contagious and infectious diseases of live stock. Congress has
enacted a statute to enable the Secretary of Agriculture to establish and
maintain quarantine districts. Congress has enacted the meat inspection act.
Congress has enacted a second employer's liability act. Congress has enacted
the obscene literature act. Congress has enacted the lottery statute above
referred to. Congress has enacted (but a year ago) statutes prohibiting the
sending of liquors by interstate shipment with the privilege of the vendor to
have the liquors delivered c.o.d...." Shawnee Milling Co. v. Temple, 179
Fed. 517, 524 (1910). All these acts can be technically justified on the
construction of the interstate commerce clause of the Constitution. Reference
has been made in previous pages to the power of Congress over the mails and the
power to prohibit the transmission of matter deemed injurious. See Ex parte
Jackson, 96 U. S. 727 (1878); Ex parte Rapier, 143 U. S. 110 (1892).
[28] Hammer v. Dagenhart, 247 U. S. 251 (1918).
[29] Notice especially Veazie Bank v. Fenno, 8 Wallace
533 (1869); McCray v. United States, 195 U. S. 27 (1904); United States
v. Doremus, 249 U. S. 86 (1919).
[30] Bailey v. Drexel Furniture Co., 259 U. S. 20
(1922).
[31] The Court referred to the Doremus case and said, "The
court, there, made manifest its view that the provisions of the so-called
taxing act must be naturally and reasonably adapted to the collection of the
tax and not solely to the achievement of some other purpose plainly within
state power." Bailey v. Drexel Furniture Co., 259 U. S. 20, 43 (1922).
In the Doremus case this statement appears: "The act may not be declared
unconstitutional because its effect may be to accomplish another purpose as
well as the raising of revenue." United States v. Doremus, 249 U. S. 86.
94 (1919).
[32] Head Money Cases, 112 U. S. 580 (1884); Brushaber
v. Union Pac. R. R. Co., 240 U. S. 1 (1916), and references. The
sixteenth amendment "does not extend the taxing power to new or excepted
subjects". Peck v. Lowe, 247 U. S. 165, 172 (1918). On the basis of this
principle, taxes oh salaries of state officers and on income from state bonds
would still be exempt from taxation. See The Collector v. Day, 11
Wallace 113 (1871). Metcalf v. Mitchell, 269 U. S. 514 (1926), discusses
the subject. See specially Ibid., 522. The case holds that consulting
engineers under special contracts are not officers.
[33] National Prohibition Cases (Rhode Island v.
Palmer, etc.), 253 U. S. 350 (1920). See also Dillon v. Gloss, 256 U. S.
368 (1921). A federal district judge went so far as to declare the amendment
had not been constitutionally adopted, because it was of such a character that
it ought to have been ratified by conventions and not by legislatures. The
Supreme Court, on appeal, paid no prolonged attention to this pretentious
position: "The choice, therefore, of the mode of ratification, lies in the sole
discretion of Congress." United States v. Sprague, 282 U. S. 716, 730
(1931). The main announcements of the Court are: the requirement of a
two-thirds vote in Congress means two-thirds of those present; when a state is
acting on the ratification of an amendment, a referendum provision in a state
constitution is inapplicable; the amendment was within the power to amend
reserved in Article V of the Constitution; concurrent power of Congress and the
states does not enable either Congress or the states to defeat or thwart the
prohibition, but only to enforce it by appropriate means; the period set by
Congress for state action (seven years) was within congressional authority; the
amendment became part of the Constitution when the requisite number of states
had ratified, i.e., it did not wait upon promulgation by the Secretary of
State.
[34] Leser v. Garnett, 258 U. S. 130 (1922).
[35] It is only necessary to remember the months after the
defeat of the Federalists in 1800, the retiring attitude of Jefferson some
months before his official retirement, and the holding of office by Buchanan
four months after the election of Lincoln, to see what the practice involved.
For the full text of the amendment, see the appendix.
[36] "The oft-repeated statement that the Federal Government
is the greatest business enterprise in the United States needs no elaboration.
Its truth, however, can be appreciated only by those who have had occasion to
survey in detail the great variety and wide ramification of the functions
performed by such establishments, for example, as the United States Veterans'
Administration, with expenditures in recent years of about $1,000,000,000, or
of such departments as the War and Navy Departments, expending together between
seven and eight hundred millions per annum, or the Department of Agriculture,
with annual expenditures which have varied in recent years from $150,000,000 to
$300,000,000." C. H. Wooddy, The Growth of the Federal Government
1915-1932, p. viii.
[37] No way has appeared or is likely to appear whereby
through court action the federal government can be prevented from making such
appropriations as it sees fit. See Frothingham v. Mellon (Mass.
v. Mellon), 262 U. S. 447 (1923), where a state and a private taxpayer
sought to prevent the expenditures authorized by the so-called Maternity Act,
which authorized appropriations to.be apportioned among such states as should
apply for funds and accept and comply with conditions, for the purpose of
reducing maternal and infant mortality.
[38] The Federalist, no. XVII.
[39] "The existence of a so-called 'twilight zone,' an
ill-defined and hazy territory between state and federal authority, has offered
undisturbed opportunity for the operations of the exploiter. Without infringing
upon state autonomy the Progressive movement demands the illumination of the
'twilight zone.' It insists that the federal government must have liberty to
exercise its function in behalf of the common welfare where the power of the
individual state is shown to be insufficient." S. J. Duncan-Clark, The
Progressive Movement, with an Introduction by Theodore Roosevelt, p. 32
(1913).
[40] In a speech made at Osawatomie, Kansas, on August 31,
1910. T. Roosevelt, The New Nationalism, pp. 27-28.
[41] Kansas v. Colorado, 206 U. S. 46, 89 (1907).
[42] The nature of the presidential office and its
development have been briefly discussed in chapters XVII, XVIII, XXXII of this
work.
|
|
| |
