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REGULATION OF COMMERCE.
First in importance may be mentioned the power in Congress " to regulate commerce with foreign nations and among the several states." From these few words a body of laws has been developed by the decisions of the Court, vitally affecting commerce. Commerce includes navigation, water and land transportation of property and passengers, intercourse, and necessarily the instruments of traffic such as ships and railroads, and telegraphic lines on post roads. Whatever affects the regulation of commerce with foreign nations or among the states is committed to Congress. Whatever obstructs, taxes, or burdens such commerce, or discriminates in its rates or charges, is to some extent a regulation, and thus within the control of Congress. The power is a national one, and the states have no voice or power in the matter. They can regulate commerce which begins in a state and never passes its boundary, but all commerce which passes state lines is within the exclusive control of Congress. Unless Congress otherwise declares, all interstate commerce is free. Many cases have arisen in which the legislation of states has been declared void, because either a direct or indirect encroachment upon the exclusive power of Congress. The decisions are not entirely reconcilable with each other; this, because the judges in these as in other cases cannot always agree respecting the application of the Constitution to peculiar cases, and because in a body of nine judges the majority of the quorum which controls the decision to-day may have been the dissenting minority in the decision which was pronounced yesterday by a full bench. Side by side with the doctrine of the exclusive power in Congress to regulate commerce have grown up two exceptions to the power or qualifications of it: first, where the particular matter of commercial regulation is from its nature of local operation ; such as the improvement of harbors, their pilotage, the erection of bridges, wharves, piers, and docks, the establishment of beacons and buoys, Congress allows the state to act, until it takes the matter in hand itself; the local authorities better understand the local needs and can better provide for them. This exception comes from the grace of Congress. The second is, the state has a police power which is one of its reserved powers and rights, and is
1 therefore superior to congressional invasion. This is a power to guard the health, safety, good order, and morals of the community, and to afford protection to property. The full discussion of this important topic with its exceptions would require a treatise of considerable magnitude.
The practical effect is to establish free trade between the states under leave of the nation, with local helps and police supervision on the part of every state.
Next in importance is the provision in the Constitution that no state shall make any law “impairing the obligation of contracts.” More attempts have been made by the states to evade this provision than any other — perhaps than all others in the Constitution. Under the broad interpretation given to it by the Court, it has proved to be a mighty bulwark against public and private plunder. Upon the binding obligations of contracts repose the rewards of labor, the title to property, and general public confidence. The temptation to incur debt is generally present; to repudiate it when its burden is oppressive is a common form of dishonesty. The laborers who worked eleven hours in the vineyard wanted to repudiate their contract. They “ murmured against the good man of the house, saying, these last have worked but one hour, and thou hast made them equal unto us who have borne the burden and heat of the day. But he answered one of them and said, Friend, I do thee no wrong, didst thou not agree with me for a penny ? ”
The state courts have always professed respect for the provision, but have frequently attempted to relax its rigor, or evade or deny its application. The Supreme Court has gone to the utmost limit of permissible construction to uphold it, and thus has done an immense labor in enforcing honesty. It has been baffled, however, in its attempts to prevent state repudiation by the non-suability of a state by a private party. Universal suffrage is not yet sufficiently sensitive in honor to hold a state to the full discharge of a public debt which is so oppressive that the government cannot disguise its burden, or conceal its exactions from the voter. An amendment to the Constitution in this respect is suggested in a previous lecture.
UNITED STATES NOTES A LEGAL TENDER.
The Constitution denies to a state the power to coin money, to emit bills of credit, to make anything but gold and silver coin a tender in payment of debts. This was an additional check against state dishonesty. The State of Missouri issued bills of credit in 1821. The Supreme Court held them to be void, and thus, it is curious to notice, enabled the state to escape from the obligation of her contract to redeem them. But the particular evil was more than compensated by the general good.
No power is expressly conferred by the Constitution upon the nation to make anything but gold and silver a legal tender. Nevertheless, the Supreme Court has held that the power exists; that Congress has the power to borrow money, and therefore the power to issue its notes in the form most convenient and useful; that Congress is not forbidden by the Constitution to make the notes a legal tender, and does have the power to make such enactments respecting them as will make them most conducive to the public welfare ; that its judgment that the quality of legal tender impressed upon these notes is most conducive to the public welfare is its judgment upon a political question, and thus within its discretion, and therefore permissible.
Something is said by the Court to the effect that the power to impress notes with the quality of legal tender is a power universally understood to belong to sovereignty, and that Congress is the legislature of a sovereign nation. These remarks were not essential to the demonstration. That is complete upon the premises assumed, without reference to sovereign powers. Nevertheless, much dissent has been expressed with respect to this reference to the powers of sovereignty. The limited number of powers which the nation possesses are sovereign. The delegated powers are complete. If the nation has the power to declare its notes a legal tender, that power is by the Constitution a sovereign power because there is no higher power residing elsewhere. There is no declaration by the Court that, in addition to the powers conferred by the Constitution, the nation also has other powers as the attributes of its sovereignty. The Court has always disclaimed the existence of such powers, and probably always will.
The Court has uniformly held that the decision of the executive and legislative departments, with reference to the political matters committed to their authority and discretion, will not be reviewed by the Court. This negative decision is practically a decision upholding the action of these departments
, and thus as decisive as if the Court actually reviewed and affirmed their action. The question is put at rest.
In matters of taxation both nation and state are held to have concurrent powers, except with regard to imports and foreign and interstate commerce, but neither government will tax a governmental instrumentality of the other; for the power to tax is the power to destroy by increasing the weight of the tax.
The United States will not punish crimes except those declared by its own statutes ; this, for the reason that it can make no law except within the legislative powers granted to it, and hence it can have no unwritten laws, and therefore none to be violated. Under the recent amendments the Supreme Court will allow, however, a criminal case to be removed from a state to a federal court, when the defence is a justification under the laws of the United States; this, because the United States will protect whatever rights it confers.
The more our constitutional history is examined, the stronger will be the conviction that the Supreme Court bas been indispensable to the success of our federal system of government.
SOME OF THE CAUSES OF THE STABILITY AND SUCCESS
OF OUR DUAL SYSTEM OF GOVERNMENT.
WE assume that our system of coöperative national and state governments is thus far a practical success, and that it gives promise of long continuance. It will be useful, therefore, to ascertain some of the principal features which give it stability and excellence. How is it that this republican government is strong enough to perpetuate itself? And why is it that the power and means necessary to maintain it do not oppress the people or restrict their liberties? The questions are comprehensive, and any answer must be far from complete. It would be easy for the pessimist to answer and say that the government is neither stable nor excellent, and that it is gradually advancing toward tyranny and oppression, and must sooner or later be overthrown by the rebellion of the people against its usurped authority, or be preserved by the strong hand of military and police power. We reject such gloomy predictions, confessing, however, that the croaker of evil often suggests dangers which prudence should take care to remove or provide against, but believing that the necessary prudence exists.
Government is a necessity. It is necessary to regulate the association of men with each other, to prevent the invasion of their liberties and rights, and to promote that good which society is willing to do for its members.
Government in its simplest and best form is the elaboration and enforcement of those natural laws of reason and justice which every man in some degree instinctively recognizes as due from him to his associates, and from them to himself. To secure uniform and universal obedience to these laws, the power to declare and enforce them must be lodged somewhere. Convenience and better service are promoted by the division