“We repeat that in considering this subject we are concerned not with any general regulation of what should be published in newspapers, nor with any condition excluding from the right to resort to the mails, but we are concerned solely and exclusively with the right on behalf of the publishers to continue to enjoy great privileges and advantages at the public expense, a right given them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the foundation of the privileges accorded.”[433]
This decision thus applies simply to the suspension of second class privileges and not to any general denial of the use of the mails. It is significant, moreover, that the Court expressly refused assent to the contention of the government, which as paraphrased in the opinion, was that the law merely “imposes conditions necessary to be complied with to enable publishers to participate in the great and exclusive privileges and advantages which arise from the right to use the second-class mail,” but that even if “the provision be given the significance attributed to it by the publishers, it is valid as an exertion by Congress of its power to establish postoffices and post roads, a power which conveys an absolute right of legislative selection as to what shall be carried in the mails, and which, therefore, is not in anywise subject to judicial control even though in a given case it may be manifest that a particular exclusion is but arbitrary because resting on no discernible distinction nor coming within any discoverable principle of justice or public policy.”
The Court, however, emphatically refused to accept this view, saying that “because there has developed no necessity of passing on the question, we do not wish even by the remotest implication to be regarded as assenting to the broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition, embodied in the proposition of the government which we have previously stated.”
The Supreme Court has, however, permitted Congress, in the exercise of its taxing power, and less noticeably in its control of interstate commerce, to accomplish ends which were not included in the enumerated delegations of the Constitution. Thus, the tax on state bank notes which made their issue unprofitable was upheld on the ground that “the judiciary cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected.”[434] Such a position in this case, however, was easily justified on the ground that Congress had the power to stop altogether the issue of the state bank notes if it thought that this course was necessary in order to provide an effective currency system, and the case thus loses much of its apparent importance.[435]
More illustrative, perhaps, of the plenary power of Congress with respect to the raising of a revenue, and impossible to justify on such a ground, is the decision upholding a tax upon oleomargarine so heavy that it can only be manufactured at a loss. Thus, unable directly to control manufacture, Congress has achieved the same end through the exercise of its taxing power. The Supreme Court said:
The argument “when reduced to its last analysis comes to this: that because a particular department of the government may exert its lawful powers with the object or motive of reaching an end not justified, therefore it becomes the duty of the judiciary to restrain the exercise of a lawful power whenever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that under our constitutional system, the abuse by one department of the government of its lawful powers is to be corrected by the abuse of its powers by another department.”[436]
Such reasoning is, it appears, final, although it goes farther than the Bank Note Case which declared that “there are indeed certain virtual limitations arising from the principles of the Constitution itself. It would undoubtedly be an abuse of the power [that of taxation] if so exercised as to impair the separate existence and independent self government of the states or if exercised for ends inconsistent with the limited grants of power in the Constitution.”[437] However, although with more guarded language, the Court, even in the McCray case, intimated that a judicial veto might attach to measures which on their face bore evidence of not being tax laws at all, but were transparent in their purpose to control subjects not within the power of Congress. Such a law has not come before the Supreme Court.
Not so striking, but nevertheless important illustrations of this “nullification by indirection”[438] are to be found in the interstate commerce legislation of recent years. Congress has excluded lottery tickets from interstate commerce on account of their harmful effect on recipients;[439] it has assumed a control over the manufacture of food products by establishing standards of purity which must be met before the articles may begin an interstate journey.[440] The Mann White Slave Act extends federal control to immorality in the states, and in its decision upholding this law, the Supreme Court frankly admits that the means exerted “may have the quality of police regulations.”[441] Proposals are now made to control manufacturing and trading companies, whether interstate or not, by compelling them to take out federal charters and modify their business practices (over which Congress has no direct control) in accordance with federal regulations before they will be permitted to enjoy the facilities of interstate commerce. It is most strongly urged that the national legislature has the power to improve labor conditions within the states, the most desired manifestation being a law putting articles made by children under specified ages in the same class with lottery tickets and impure foods.
Up to this time, however, legislation under the commerce clause has developed little necessity for passing upon the question whether these ultimate purposes may be considered by the courts, for the indirect control effected by the various acts is purely incidental in character. It is quite proper for Congress to build up an Index Expurgatorius just as it has done in the case of the mails, and to say that commerce shall not be “polluted” by the carriage of obscene literature, impure food, and made an agency to promote immorality. In every case, the power has been exerted on things, not on persons, and only once has there been even an apparent departure from this theory. Here the Supreme Court by a forced interpretation of the statute destroyed much of its force. I refer to the “commodities clause” of the Hepburn Bill which made it unlawful for any railroad to transport, except for its own use, any commodity other than timber which it had manufactured, mined, or produced, or in which it had any interest. The Court interpreted this as meaning that the railroad was not forbidden to engage in mining, but that before transporting the product, it had to divorce itself from any interest by a bona fide sale. Such legislation, however, was “necessary and proper” in order to insure the enforcement of the regulations providing for equality of rates, publications of tariffs, etc. Any other interpretation would have required the Court to consider and decide several very “grave constitutional questions” as to the powers of Congress to regulate the production and ownership of commodities simply because they might become subjects of interstate commerce.[442]
But conceding the authority of Congress to regulate child labor indirectly, upon what theory is it based? In the words of a reluctant convert, “the lottery case is authority for the doctrine that interstate carriers may be prohibited from carrying, or shippers or manufacturers from sending from state to state and to foreign countries, commodities produced under conditions so objectionable as to be subject to control, as to their manufacture, by the states under an exercise of their police powers, or of a character designed or appropriate for a use which might similarly be forbidden by law.”[443] Such legislation, however, would be directed against the articles produced under the objectionable conditions, and the manufacturers who employed child labor would not be prohibited from using the advantages of interstate commerce for other articles, not so produced.[444]