The same argument was made and rejected in the Anti-Trust cases. The necessary effect of the Anti-Trust Act is to interfere with production in a state. Its design was to break up monopolies, but the actual prohibition of trust-made goods was not held invalid because it has had that necessary effect in states. If unfair competition through transportation in interstate commerce of child-made products cannot be touched by Congress simply because of the effect on local policy, the Sherman Anti-Trust Act and the Clayton Act must be invalid for the same reason. The necessary effect of the Commodities Clause was to nullify the policy which the State of Pennsylvania had followed for generations with reference to combination between coal-producing and coalcarrying companies. This was expressly decided to be no ground for invalidity.43 Indeed, it has been settled that so far as direct regulation of intrastate rates as purely a state matter as can be conceived is necessary in order to effectively carry out the congressional policy with reference to interstate rates, local rates established by state laws may be set aside.44

47

As to foreign commerce, the same objection, repeatedly raised, has suffered the same fate. In Weber v. Freed it was urged against the validity of a prohibition of the importation of prizefight films that the act had the necessary effect and was designed to accomplish a police result within the exclusive cognizance of the states. The contention was held to be frivolous. It was so held with reference to opium in Brolan v. United States,46 with reference to sponges in The Abby Dodge, to tea, in Buttfield v. Stranahan.48 So far as matters entirely within the control of the states are concerned, and so far as the necessary effect of the exertion of Congressional power upon such control is concerned, each of these cases is indistinguishable from the Dagenhart Case. If the necessary and designed effect upon state manufacture is the test, every protective tariff measure and the early embargo acts have surely been invalid.

43 United States v. Delaware & Hudson Co., 213 U. S. 366 (1909); United States v. Del., Lack. & West. R. R. Co., 238 U. S. 516 (1915).

Shreveport Case, Houston & Texas Ry. Co. v. United States, 234 U. S. 342 (1914); Adams Express Co. v. Caldwell, 244 U. S. 617 (1917).

The settled principle is not confined to cases dealing with interstate or foreign commerce.

As Mr. Justice Holmes said in the principal case:

"The manufacture of oleomargarine is as much a matter of state regulation as the manufacture of cotton cloth. Congress levied a tax upon the compound when colored so as to resemble butter that was so great as obviously to prohibit the manufacture and sale. In a very elaborate discussion the present Chief Justice excluded any inquiry into the purpose of an act which apart from that purpose was within the power of Congress. McCray v. United States, 195 U. S. 27. . . . Fifty years ago a tax on state banks, the obvious purpose and actual effect of which was to drive them, or at least their circulation, out of existence, was sustained, although the result was one that Congress had no constitutional power to require. The Court made short work of the argument as to the purpose of the Act. 'The judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers."" 49

Administration of local property by executors, administrators and trustees seems a matter purely of local control; and on that ground section II of the Federal Reserve Act, empowering the federal banks to act in such capacity within the state, was held invalid by the Supreme Court of Michigan. The judgment was reversed by the Supreme Court of the United States in First National Bank v. Fellows.50 The state was held incompetent

"to prohibit such business from being united by Congress with the banking function, since to do so would be but the exertion of state authority to prohibit Congress from exerting a power which under the Constitution it had a right to exercise."

So Congress is not to be denied the right to exercise its power of eminent domain by reason of the effect on state laws or state policy.51 Yet the passage of title to lands within the state is a matter peculiarly within the state authority.

A more striking example is with reference to the state power over militia. Before the Constitution was adopted it was generally considered that the state control over militia was essential to the

49 247 U. S. 278, 279 (1918).

50 244 U. S. 416 (1917).

51 Kohl v. United States, 91 U. S. 367 (1875); Chappell v. United States, 160 U. S. 499, 509, 510 (1896).

continued existence of the state, a principle embodied in Art. II of the Amendments, as follows:

"A well-regulated militia being necessary to the security of a free state."

It was argued in the recent Selective Draft Law cases that the power of the federal government to draft militiamen would, if exercised without limit, wipe out a vital state organization. The effect was not indirectly upon state policy, but upon the state governmental institution itself. The argument was held to be without merit.52

The principle that local affairs are reserved to the states cuts across every grant of power to the federal government. It matters not whether the delegated power is one over interstate commerce or foreign commerce, or taxation or war. Congress cannot invade the province of the states any more by the exercise of one power than another. The Constitution is the fundamental law in time of war as well as of peace. Is then the recent Food and Fuel Act of August 10, 1917,53 invalid, which empowers the agencies of the federal government to regulate directly and in detail the manufacture and production of foods, feeds, fuel and other necessaries for the conduct of the war?

It may be objected that in each of the cases cited the federal statute was a genuine exercise of authority delegated to meet a real federal problem; that so far as a matter is genuinely interstate, the federal law governing it must prevail; but interstate commerce cannot be used as a pretext for the accomplishment of unlawful results.

Let us assume, despite Veasie Bank v. Fenno54 and McCray v. United States,55 that a congressional enactment would be void which forbids a man to be transported in interstate commerce; who has been divorced according to some non-uniform statute; or who has refused to purchase Liberty Bonds; or who has manufactured colored oleomargarine. The ground of invalidity would be not only violation of the Fifth Amendment but also that the evil sought to be cured has no conceivable connection with the interstate commerce regulated.

52 Selective Draft Cases, 245 U. S. 366 (1918). 54 8 Wall. (U. S.) 533 (1869).

53 C. 53, 40 Stat. 276.

55

195 U. S. 27 (1904).

Between the two clear extremes there are many cases as to which there must be reasonable difference of opinion as to whether or not Congress is dealing with a genuine interstate matter. Such a case is the Lottery Act, the Pure Food and Drugs Act, the White Slave Act and the Child Labor Act. Statutes forbidding interstate transportation of goods made by African slaves, or by convicts, or by women at night, or of the product of sweat shops, or made by non-union labor, or by women and children employed at less than a minimum wage, may also be put in the arguable class.

How shall it be determined that the problem is truly an interstate one and the exercise of federal power is bona fide? Clearly not by the effect on the states, because that is as great in the one case as in the other. The question is essentially one of fact.

In determining the question definite rules have been long established. As an aid the court consults the legislative environment in which the act was passed, the Senate and House committee reports, and the history of the times.

The prime consideration is the language used in the enactment. The deliberate legislative decision that interstate commerce power is being exercised is entitled to great weight. The legislature is a coördinate branch of the government. It has no prima facie case to overcome. It need not demonstrate its power under one particular theory rather than another. An enactment passed in due form cannot be upset on proof that a majority of the Representatives acted under erroneous views of legislative policy. If upon the face of the act any legitimate legislative purpose may be discovered, or rather, unless he who attacks can clearly show no possible proper purpose, the act must be sustained. To use the familiar language of the reports: "Every presumption favors constitutionality."

Further, the question as to the existence of a genuine interstate problem is not to be complicated by the fact that solving it would also cure a local evil, and that in the minds of the public or of the members of Congress the local evil loomed large and induced action on the interstate matter. Such was the situation in the Lottery, Pure Food, White Slave, Liquor and Anti-Trust cases. It was the same in the prohibition of use of the mails to defraud.

When the charge was made that a local police result was the object of the Prize-Fight Film statute, the court answered that it had

no power to examine into the motives of the legislature. Weber v. Freed.56 As Mr. Justice Holmes put it:

"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."

58

In Fletcher v. Peck57 it was held that a statute good on its face could not be impeached by proof that votes for it had been procured by bribery or corruption. As was said in In re Kollock,5 "The act before us is on its face an act for levying taxes, and although it may operate in so doing to prevent deception in the sale of oleomargarine as and for butter, its primary object must be assumed to be the raising of revenue."

Proof that there is a large local problem, therefore, is not sufficient to show that there is not a genuine interstate problem.

With these principles in mind, how shall the supposititious cases in the doubtful class be decided? Closing the channels of interstate commerce to the products of non-union labor must be held ultra vires, according to Adair v. United States 59 and Coppage v. Kansas.60 As to products of sweat shops, of night work by women, and of work by women and children at less than minimum fixed wages, we may not now have sufficient facts to judge.

The basis of federal action in the Child Labor Case, which the majority held insufficient, is, however, shown by the legislative history of the act. The situation which finally compelled Congressional action arose from the truly interstate character of the child-labor evil. The problem arose not solely because of the effect of transportation across state lines, but also because in the federal system are comprised states each with divergent interests, and the nation with its interest in the people as a whole. Years ago Congress ordered an investigation, and a bulky report was printed styled "Report on Condition of Woman and Child Wage Earners in the United States." 61 It appeared that the child-labor regulations of the states were not uniform, and that manufacturers in high standard states, whether correctly or not, felt at a disad

56 239 U. S. 325, 330 (1915).

58 165 U. S. 526, 536 (1897).

60 236 U. S. 1 (1915).

57 6 Cranch (U. S.) 87, 130, 131 (1810).

59 208 U. S. 161 (1908).

61 SEN. Doc. 645, 61st Cong.