There is an obvious distinction between such legislation and that advocated by the money trust committee, a distinction which is suggested, but not stressed, by the Solicitor General in the brief filed on behalf of the government in the newspaper publicity case: there must be no “regulation of the private business of citizens in a manner beyond any express or implied power of Congress” on the ground that such regulation “imposes as a penalty for disobedience a denial of an important federal privilege which Congress controls.” Any legislation excluding from the mails must apply directly to the things mailed, not to the persons using the mails. This is a distinction which is evident in the decisions upholding the interstate commerce legislation, and which underlies the argument that Congress may exclude commodities manufactured in whole or in part by children. The law would operate directly on these commodities, not on account of their inherent character (which would probably not be different from that of other commodities manufactured by adult labor), but because of the objectionable conditions of production. And by a parity of reasoning, Congress could exclude from the mails matter relating to gambling transactions which might be forbidden under the police power of the state, although such matter, on its face, would be harmless. But it is an entirely different proposition absolutely to deny the use of the mails because certain persons have refused to comply with conditions, beyond the power of Congress directly to impose, which it thinks may result in regulating objectionable practices, although these may be entirely disassociated from the bulk of the matter which has been excluded.
The briefs of counsel on behalf of the Pujo Committee furnish no argument to change the opinion here expressed that the proposed legislation would be unconstitutional.[445] The validity of the bill is asserted on the ground of the cases, already considered,[446] upholding the power of Congress to exclude lottery tickets and fraudulent matter. Chief importance, however, seems to be attached to a dictum of a District Court which says:
“If the use of the mails is a privilege which may be granted or withheld by Congress, Congress has the power to determine what shall be carried and what excluded ... under the power to regulate the mails it has seen proper to declare that they shall not be used for any purposes which are detrimental to the morals of the people or against public policy, and by enacting that the sending of obscene matter through the mails shall not be permissible, it has determined such acts to be against public policy.”[447] In this case the only matter before the court was the construction of the statute; there was no question as to the power of Congress, and the reasoning making public policy the test is clearly obiter. Counsel for the Pujo Committee, however, boldly argued as follows:
“It would therefore be within the competency of Congress, to prohibit absolutely the transmission through the mails of a circular or pamphlet or newspaper containing the quotations or information concerning transactions in securities on stock exchanges or otherwise, just as it has prohibited the transmission of circulars containing information with regard to lotteries. Such a prohibition may be absolute or conditional. Thus Congress might accompany a prohibition absolute in form with a proviso that its inhibition should not be applicable to” matter relating to securities “sold or offered for sale on a stock exchange duly incorporated, whose charter shall contain provisions similar to those set forth in the pending bill.” Congress, the argument concludes, would simply be laying down a “rule as to what shall and what shall not be mailable matter, and in making this classification it is giving expression to what it conceives to be sound public policy, to the same extent and in the same way it does when it enacts any other kind of legislation that comes within the constitutional grant of legislative powers.”[448]
But, it is submitted, Congress would be doing nothing of the sort. In the cases of the lottery tickets and obscene matter, the inhibition was on account of the inherent character of the matter mailed. If the test was one of public policy, as the very broad language of the District Court’s opinion would seem to indicate, Congress simply declared it not sound public policy that the mails of the United States should be used in furtherance of transactions that were harmful. To be sure the Postmaster General is authorized to seize and detain all letters addressed to a person against whom a fraud order has issued, but this is justifiable on the ground that it is reasonably necessary in order to make effective the regulations against using the postoffice to defraud; but Congress has not yet made it a crime for anyone, some of whose mail matter may come within the inhibition, to deposit in, or take from, the mails, letters of a personal and harmless character. It is improper, then, to argue that in passing the Pujo Bill, Congress would act “to the same extent and in the same way” as it has done in the past. The authority of the fraud order decisions is simply that if Congress excludes matter relating to gambling transactions (as it probably has the right to do), correspondence deposited by or addressed to, the person suspected of unlawfully using the mails, may be seized and detained in order to make the gambling regulations effective. But the cases furnish no ground for the belief that Congress may penalize the use of the mails by these persons for the transmission of matter that is harmless. The brief of counsel for the Pujo Committee does not argue this point; nor does it take the natural, but nevertheless untenable, further position and maintain that Congress may make it a crime to deposit this harmless matter in order to detect violations of a law excluding information concerning gambling contracts.
On the contrary, counsel conceive the public policy of the proposed legislation to be the enforcement of the regulations set forth in the pending bill,—regulations that are not concerned with the character of the mail matter, but with persons using the mails. Not even by twisted interpretations can the adjudicated cases be made to support such reasoning. The “newspaper publicity law” which marks the extreme assertion of congressional authority, applies directly to the papers mailed. Only one dictum, of a nisi prius court,[449] lays down the test of public policy, and if, under its enumerated powers, Congress may legislate in fulfillment of this vague purpose, there would be a good deal of difficulty, I fancy, in showing that it would be subserved by the enforcement of the proposed regulations. And conceding that Congress may control the postoffice on grounds of public policy, the fact that the ends to be attained are unconnected with the use of the mails, would prevent the legislative fiat from being final, and the enforcement of the Pujo Committee’s recommendations would be so onerous and remote, that it would, I venture, not be permitted.[450] Reasoning such as that indulged in by the counsel, moreover, disregards the principle that runs through all the cases: the enforcement of postal regulations must be consistent with the rights reserved to the people. And the Pujo Bill attempts to regulate, not the mails, but stock exchanges.
The first Employers’ Liability Case,[451] it is submitted, furnishes sufficient basis to uphold the correctness of the view that the proposed legislation is unconstitutional. In these cases it was held that the statute was not confined to a regulation of interstate commerce, but attempted to control persons, not only as to their engaging in interstate commerce, but in other respects, simply because some of their activities came under the authority of Congress. Furthermore, the Supreme Court has held that “there is no such connection between interstate commerce and membership in a labor organization as to authorize Congress to make it a crime against the United States for an agent of an interstate carrier to discharge an employee because of such membership on his part.”[452]
There are a number of dicta of the United States Supreme Court, particularly in regard to objectionable state statutes, which show that attempted indirect regulation is considered improper, at least for the local legislatures. First in time and importance comes Marshall’s famous statement, that “should Congress under pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”[453]
Or, as was said in another case: “The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty—indeed under a solemn duty—to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of the rights secured by fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the Constitution.”[454] No power ought to be sought, much less adjudged, “in favor of the United States, unless it be clearly within reach of its constitutional charter.” The courts are “not at liberty to add one jot of power to the national government beyond what the people have granted by the Constitution.”[455]
The Court has, moreover, adhered to “the great principle that what cannot be done directly because of constitutional restriction, cannot be accomplished indirectly by legislation which accomplishes the same result.... Constitutional provisions,” adds Justice Brewer, “whether operating by way of grant or limitation, are to be enforced according to their letter and cannot be evaded by any legislation which, although not in terms trespassing upon the letter and spirit, yet in substance or effect destroys the grant or limitation.”[456]