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vantage with competitors in the states with low standards. The large development of cotton manufacturing in the South, to cite the most conspicuous example, was said to be due to the employment of cheap child labor.62 The protest that the "unfair competition" of other states would be ruinous repeatedly defeated salutary state measures proposed for the protection of the children.63 Because the products met in competition in interstate commerce the states were powerless to protect themselves. Ohio and Massachusetts, calling attention to the immoral competition of other states, formally memorialized Congress to act.64 The matter was stressed in the debates in Congress, the Congressional hearings, and the Committee Reports.65 The Senate Committee Report stated: 66

"So long as there is a single State which for selfish or other reasons fails to enact effective child-labor legislation, it is beyond the power of every other State to protect effectively its own producers and manufacturers against what may be considered unfair competition of the producers and manufacturers of that State, or to protect its consumers against unwittingly patronizing those who exploit the childhood of the country. This is true because the States have delegated to Congress the power to regulate interstate commerce, and have thus deprived themselves of the power to prohibit the sale within their own borders of products of the child labor of other States." (People v. Hawkins, 157 N. Y. 1 (1898); People v. Haynes, 198 N. Y. 622 (1910); Opinion of the Justices, 211 Mass. 605 (1912).)

It was precisely to avoid such interstate friction as developed in child-labor matters that the Constitution was adopted. Would, then, upholding the Child Labor Law result in so much standardization that "our system of government would be practically destroyed?" The question is important, for preservation of local autonomy in local affairs is vital.

Under the tests suggested, standardization would result only so far as necessary to the legitimate exercise of federal power to cure a genuine interstate commerce evil. It would result, moreover,

62 51 CONG. REC. 1047, 1054; 53 CONG. REC. 12308.

63 See 6 REPORT, supra, 152, 160, 176, 178, 179, 194, 196; 53 CONG. REC. 1807, 3026, 12208.

64 45 CONG. REC. 5245; 53 CONG. REC. 1002.

65 See HOUSE REPORT 1400, 63d Cong. 3d sess. 7-9.

6 SENATE REPORT 358, 64th Cong. 21.

only when Congress affirmatively established the uniform rule. Under the salutary doctrine of Cooley v. Port Wardens 67 and the Minnesota Rate cases 68 state statutes based on the so-called police power, even though directly interfering with interstate commerce, are valid when not conflicting with the Congressional rule.69 It may be the national legislature would exercise its power more frequently than in the long run would be politic or expedient. Inexpediency, however, is not lack of power, and often a man as legislator must vote against a bill which as judge he can not say is ultra vires.

Our history gives little basis for fear that the legislature would regulate interstate commerce matters too frequently. It would be trite to enumerate the matters within the federal field which the Congress has left to the states.70 Curiously, in the Webb-Kenyon Law Case it was asserted as ground of unconstitutionality that if the law were sustained, not undue centralization but decentralization would result.71

The difficulty with the doctrine of absolute constitutional prohibition of the regulation of interstate commerce because of the effect on local affairs is not solely that expressed in the McCray decision,72 that the distinction between the judicial and the legislative powers is destroyed, a matter full of danger to the permanence of our institutions; but even more important is the resulting great void in governmental power itself, the establishment of a zone between nation and state which neither can touch. The result is that the sum total of powers of state and nation is less than the independent states previously had.

During the period from 1783 to 1787 the country had experience with the system under which no common authority existed to de

67 12 How. (U. S.) 299 (1851).

68 230 U. S. 352 (1913).

69 Asbell v. Kansas, 209 U. S. 251 (1908); Missouri, K. & T. Ry. v. Haber, 169 U. S. 613 (1898); Reid v. Colorado, 187 U. S. 137 (1902); Plumley v. Massachusetts, 155 U. S. 461 (1894); Crossman v. Lurman, 192 U. S. 189 (1904); Sligh v. Kirkwood, 237 U. S. 52 (1915).

70 For conspicuous examples, see as to interstate ferry rates, Port Richmond Ferry Co. v. Hudson County, 234 U. S. 317 (1914), and the utilization of state executive machinery under the Selective Draft Law of May 18, 1917, c. 15, 40 Stat. 76.

1 Clark Distilling Co. v. West Md. Ry. Co., 242 U. S. 311, 322.

72 195 U. S. 27, 54 (1904).

termine the commodities and conditions of interstate commerce, what to encourage and what to prohibit. The resulting commercial anarchy was intolerable.

The defect consisted not alone in the prohibitions by the states of importation of commodities from other states. The want of a single controlling authority to take into account the commercial interests of the entire people was strongly felt. The individual states had attempted to deal with the British trade restrictions which began in 1783 to exclude American merchandise from the West Indies. Massachusetts enacted a retaliatory embargo.73 As other states saw in this only a means of attracting British shipping to their own ports, the act was repealed by Act of July 5, 1786,74 which recited: "Whereas, the good intentions of an act are rendered inefficacious, for want of a coöperation of our sister States. . .' ." The evil of British trade restrictions could not be met because some of the states by inaction made uniformity of regulation impossible.75

The history of the trade convention at Annapolis, leading to the constitutional convention of 1787, is familiar. As was stated by the Chief Justice in Brown v. Maryland,76 no one cause was more operative in the creation of the present constitutional system than the depressed state of commerce during the Confederation, and the deep general conviction that interstate commerce should be subject to single unified control. It was the essence of the system created that the rules governing the transportation of commodities across state lines should not be made by the states with the view to the industry of each particular state but by a single national legislature with the view to the interests of the nation as a whole.

In the conventions of the states called to ratify the Constitution of 1787 the dread was repeatedly expressed by Patrick Henry and others that if the powers delegated to Congress were exercised to the utmost the states would be practically wiped out of existence. Those who favored the new Constitution did not answer that the powers were not granted. The reply was that since the national legislature would be composed of representatives coming from

73 Act of June 23, 1785, Laws And Resolves of Massachusetts, 1784-85, 439. 74 LAWS AND RESOLVES OF MASSACHUSETTS, 1786-87, 36.

75 5 ELLIOTT'S DEBATES, 113, 119.

76 Supra, note 33.

the states who would be zealous to protect their local interests, the powers granted would not be abused.77

It was realized at the time that local self-government by the states must be preserved, and that too much exercise of federal authority would be pernicious. It was also realized that a single dominant federal authority, especially over interstate commerce, was indispensable. The Constitution embodied both principles. And to insure permanent harmony of operation it was declared in Art. VI, cl. 2, that the federal laws should be the supreme law of the land. Standardization, so far as it was an evil resulting from single control over interstate commerce, was to be suffered rather than the distressful weakness which had preceded.

The result of the decision in the Dagenhart Case seems to be that the grant to Congress of power over commerce among the states was not of complete sovereign power, and not coextensive with the evil sought to be remedied; and that the adoption of the Constitution caused the disappearance since neither states nor nation may exercise it of that governmental authority which the states previously had and exercised over the transportation of "harmless" commodities across state lines.

Thurlow M. Gordon.

NEW YORK CITY.

77 FEDERALIST, Nos. 28, 31, 45, 46.

HARVARD LAW REVIEW

Published monthly, during the Academic Year, by Harvard Law Students

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JENS IVERSON WESTENGARD, Bemis Professor of International Law, died on Tuesday, September 17, less than a week before the opening of the present school year. His illness was brief and not generally known so that his death came as a shock to his colleagues and to his students. An account of his life and services and tributes to his memory will appear in the December issue. At this time we can do no more than recall his unfailing patience, his uniform courtesy, his tactfulness proceeding from a kind heart and a tolerant mind, and his clearness in exposition. Behind these qualities lay a vigorous but disciplined understanding and a strong will which carried him forward in a notable career despite many obstacles. He was one of the editors of the HARVARD LAW REVIEW in the years 1896-97 and 1897-98.

THE HARVARD LAW SCHOOL in general, and this REVIEW in particular, have suffered a severe loss by the death in action of Lieutenant D. E. Dunbar. He is the first editor of the HARVARD LAW REVIEW to lose his life in the present war. Graduating with the highest distinction from the School in 1917, he was for his last year Note Editor of the REVIEW. He was especially interested in questions of constitutional law and those in which the economic aspect of the law of public utilities is concerned; and his notes upon cases of this nature are among the best that the LAW REVIEW has published. He was the author of a brilliant essay upon the tin-plate industry which was awarded the Hart, Schaffner and Marx prize in 1915. He was immensely popular both inside and outside the class-room. In the former he was always distinguished by the keenness of his criticism and the width of his interests. He had a real genius for friendship. All those who have known him well realize how ill he can be spared. Nil tetigit quod non ornavit.

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