Whether a regulation governs the transportation of goods across state lines would seem to depend upon the places where the journey begins and ends, and not at all upon the character of the goods or the evil resulting therefrom. Evil may induce the enactment of a regulation. If despite the presumption in favor of constitutionality there is no conceivable relation between the regulation of interstate commerce and a proper public purpose, it would be confiscatory, hence invalid as taking away property without due process of law contrary to the Fifth Amendment. Such, no doubt, would be the case if Congress should arbitrarily prohibit the movement of sound wheat across state lines; but the regulation would not cease to be one of interstate commerce. Its invalidity would be because of the due-process clause of the Fifth Amendment; just as a state law prohibiting the intrastate transportation of sound wheat would be invalid not as a regulation of interstate commerce but because violating the due-process clause of the Fourteenth Amendment. Questions of due process, however, were not considered in the Husen, Leisy, and Schollenberger cases, supra, and the Child Labor Case. The only question was as to what constitutes a regulation of interstate commerce.

Let us apply the principle of law that Congress may prohibit interstate transportation if evil results. Whether evil results or not is essentially a question of fact. So far as the validity of the statute depends upon the answer, the judgment of Congress is entitled to great if not conclusive weight. Congress had found that evil did result from the interstate movement of child-made goods. The four dissenting justices were of like opinion.

Whether or not commodities work evil is a matter largely of opinion, as to which the judgment of the community changes. In Leisy v. Hardin 36 liquor was thought legitimate. Not many years ago lotteries were a proper method of endowing schools and churches. Evil is as evil does. Healthy persons may be barred from states because their mere presence by reason of the prevalence of disease makes an added source of danger. Compagnie Française v. Louisiana Board of Health.37 As was said by Mr. Justice McKenna in Rast v. Van Deman,38

"A lottery of itself is not wrong, may be fairer, having less of overreaching in it, than many of the commercial transactions that the Constitution protects. . . . And at one time it was lawful. It came to be condemned by experience of its evil influence and effects. It is trite to say that practices harmless of themselves may, from circumstances, become the source of evil or may have evil tendency."

In Seven Cases of Eckman's Alterative v. United States 39 Mr. Justice Hughes said:

"It is said that a 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'

.

So, in dealing with the Food and Drugs Act, it was held that Congress could outlaw food as to which misleading statements were made, although the food in itself was perfectly wholesome.

In point of fact the products of child labor are not harmless, and there is a definite evil in their very transportation across state lines. The evil is involved in the movement itself, and its effects are felt both in the state of production and in the state of destination. Transportation of child-made goods encourages the ruin of the lives of future citizens in the state of production. It directly aids this immorality quite as much as the transportation across state lines of girls for the purpose of prostitution. Congress sought to remove the evil caused by the use of facilities over which it alone has control. It sought to remove it no further. Only that child labor was touched which depended upon the use of interstate commerce facilities for consummation of the evil.

Moreover, the interstate transportation of child-made goods unfairly discriminates against citizens of the state of destination. It tends to lower their standards of child-labor protection. It is the same effect sought to be avoided by the prohibition of importation of convict-made goods from foreign countries.40

39 239 U. S. 510, 516 (1916).

40 Act of August 27, 1894, 28 Stat. 509, 552, c. 349, § 24; Act of July 24, 1897, 30 Stat. 151, 211, c. 11, § 31; Act of August 5, 1909, 36 Stat. 11, 87, c. 6, § 14; Act of October 3, 1913, 38 Stat. 114, 195, c. 16; and of the "phossy-jaw" matches, a cheap match causing necrosis in the match-factory worker; Act of April 9, 1912, 37 Stat. 81, c. 75, § 10.

Mr. Justice Holmes, dissenting, said:

"It does not matter whether the supposed evil precedes or follows the transportation. It is enough that in the opinion of Congress the transportation encourages the evil. . . .

"The notion that prohibition is any less prohibition when applied to things now thought evil I do not understand. But if there is any matter upon which civilized countries have agreed - far more unanimously than they have with regard to intoxicants and some other matters over which this country is now emotionally aroused - it is the evil of premature and excessive child labor. I should have thought that if we were to introduce our own moral conceptions where in my opinion they do not belong, this was pre-eminently a case for upholding the exercise of all its powers by the United States.

"But I had thought that the propriety of the exercise of a power admitted to exist in some cases was for the consideration of Congress alone, and that this Court always had disavowed the right to intrude its judgment upon questions of policy or morals. It is not for this Court to pronounce when prohibition is necessary to regulation, if it ever may be necessary to say that it is permissible as against strong drink but not as against the product of ruined lives."

THE PROPOSITION THAT THE LAW IS INVALID BECAUSE ITS NECESSARY EFFECT IS TO INVADE THE PROVINCE RESERVED ExCLUSIVELY TO THE STATES.

The second phase of the opinion assumes that the statute deals with interstate commerce, but that this was only in order to accomplish a result in the states beyond the scope of federal authority. The effect of the statute is to control the hours of labor in manufacturing, and the control over interstate commerce cannot be used to this end; for if it could, the power of the states over local matters would be eliminated and our system of government practically destroyed. The second phase is represented by the following passages:

"The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the states in their exercise of the police power over local trade and manufacture.

"A statute must be judged by its natural and reasonable effect. Collins v. New Hampshire, 171 U. S. 30, 33, 34. The control by Congress over interstate commerce cannot authorize the exercise of authority not entrusted to it by the Constitution. . .

"In interpreting the Constitution it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. . . . To sustain this statute would not be in our judgment a recognition of the lawful exertion of congressional authority over interstate commerce, but would sanction an invasion by the federal power of the control of a matter purely local in its character, and over which no authority has been delegated to Congress in conferring the power to regulate commerce among the states.

“In our view the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the states, a purely state authority. . . . The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed."

It is to be noted that the doctrine thus announced is that the natural and necessary effect of the statute upon pure matters of interstate commerce is to be wholly disregarded. This doctrine is entirely new.

Looking to the substance and disregarding the form, closely investigating the purpose and ulterior motives of Congress, paying strict heed to the natural and necessary effect of the statute, assuredly it operates on the interstate transportation of child-made goods. Whatever else it does indirectly, in terms it rules only interstate transportation. And this is done to remove the evils involved in such transportation.

Still regarding the substantial effect, the statute in terms does not prohibit manufacture and does not regulate hours of labor. The manufacturer may produce as he pleases and employ whom he pleases. The manufacturer, who does not ship outside the state, and sending goods across state lines is not a right which the state can guarantee, need never know of the existence of the federal statute. The state may make such regulations as it wishes concerning the employment of children. There is no coercion upon it. The federal statute functions only when the interstate transportation begins, that is, only when the jurisdiction of the state ceases to attach.

In all previous cases, moreover, whether arising under the interstate commerce clause or other grants of power to the federal government, the effect upon state policy of an exercise of delegated power has been held to be immaterial. As Mr. Justice Holmes said: "I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State."

Familiar exercise of the power over interstate commerce where it was clear that state policy over manufacture was necessarily interfered with is found in the acts dealing with lotteries, white slaves, pure food and drugs, liquor, trusts and unfair competition, commodities produced and owned by railroads, cattle inspection, meat inspection, and railroad rates.41

The manufacture of lottery tickets, of foods whether adulterated and misbranded or not, of liquor, is quite as much matter of local control as the manufacture of cotton goods. The effect of the federal regulation of interstate commerce upon the local manufacturing is in each case the same. The evil of gambling, fraud, poisoning, and drunkenness is quite as local a matter, just as exclusively subject to state control as the evil of premature and excessive child labor. And the encouragement to the evil by shipment of products in interstate commerce is the same. The evil in Weeks v. United States was the misrepresentation in New Jersey by a salesman prior to the interstate shipment that a certain extract was a "lemon" product.

As was further said in these cases, it is immaterial that the means adopted by Congress have the character of police regulations.42

41 In the Lottery Case, Champion v. Ames, 188 U. S. 321 (1903); in the Pure Food Case, Hipolite Egg Co. v. United States, 220 U. S. 45 (1911); Seven Cases of Eckman's Alterative v. United States, 239 U. S. 510, 514, 515 (1916); Weeks v. United States, 245 U. S. 618 (1918); as Mr. Justice Holmes said in his dissenting opinion: "The objection that the control of the States over production was interfered with was urged again and again but always in vain."

Hoke v. United States, 227 U. S. 308, 323 (1913); Caminetti v. United States, 242 U. S. 470, 492 (1917); Seven Cases of Eckman's Alterative v. United States, supra; Weeks v. United States, 245 U. S. 618 (1918).