How difficult the Court found the question produced by the act of 1895, forbidding any person to bring within the United States or to cause to be "carried from one State to another" any lottery ticket, or an equivalent thereof, "for the purpose of disposing of the same," is shown by the fact that the case was thrice argued before the Court, and the fact that the Court's decision finally sustaining the act was a five-to-four decision. The opinion of the Court, on the other hand, prepared by Justice Harlan, marked an almost unqualified triumph at the time for the view that Congress's power to regulate commerce among the States includes the power to prohibit it, especially to supplement and support State legislation enacted under the police power.[498] Early in the opinion extensive quotation is made from Chief Justice Marshall's opinion in Gibbons v. Ogden,[499] with special stress upon the definition there given of the phrase "to regulate." Justice Johnson's assertion on the same occasion is also given: "The power of a sovereign State over commerce, * * *, amounts to nothing more than, a power to limit and restrain it at pleasure." Further along is quoted with evident approval Justice Bradley's statement in Brown v. Houston,[500] that "the power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations."

NATIONAL PROHIBITIONS AND STATE POLICE POWER

Following in the wake of Champion v. Ames, Congress has repeatedly brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the States in the exercise of their reserved powers, thereby aiding them in the repression of the liquor traffic,[501] of traffic in game taken in violation of State laws,[502] of commerce in convict-made goods,[503] of the white slave traffic,[504] of traffic in stolen motor vehicles,[505] of kidnapping,[506] of traffic in stolen property,[507] of racketeering,[508] of prize-fight films or other pictorial representation of encounters of pugilists.[509] The conception of the Federal System on which the Court based its validation of this legislation was stated by it in 1913 in sustaining the Mann "White Slave" Act in the following words: "Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, * * *, but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral."[510] At the same time, the Court made it plain that in prohibiting commerce among the States, Congress was equally free to support State legislative policy or to devise a policy of its own. "Congress," it said, "may exercise this authority in aid of the policy of the State, if it sees fit to do so. It is equally clear that the policy of Congress acting independently of the States may induce legislation without reference to the particular policy or law of any given State. Acting within the authority conferred by the Constitution it is for Congress to determine what legislation will attain its purposes. The control of Congress over interstate commerce is not to be limited by State laws."[511]

HAMMER v. DAGENHART

However, it is to be noted that none of this legislation operated in the field of industrial relations. So when the Court was confronted in 1918, in the case of Hammer v. Dagenhart,[512] with an act which forbade manufacturers and others to offer child-made goods for transportation in interstate commerce,[513] it held the act, by the narrow vote of five Justices to four, to be not an act regulative of commerce among the States, but one which invaded the reserved powers of the States. "The maintenance of the authority of the States over matters purely local," said Justice Day for the Court, "is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted to the Nation by the Federal Constitution."[514] As to earlier decisions sustaining Congress's prohibitory powers, Justice Day said: "In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. * * * This element is wanting in the present case. * * * The goods shipped are in themselves harmless. * * * When offered for shipment, and before transportation begins, the labor of their production is over, and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power. * * * 'When commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another State for sale, * * *, but by its actual delivery to a common carrier for transportation, * * *' (Mr. Justice Jackson in In re Greene, 52 Fed. Rep. 113). This principle has been recognized often in this court. Coe v. Errol, 116 U.S. 517 * * *."[515]

The decision in Hammer v. Dagenhart was, in short, governed by the same general conception of the interstate commerce process as that which governed the decision in the Sugar Trust Case. Commerce was envisaged as beginning only with an act of transportation from one State to another. And from this it was deduced that the only commerce which Congress may prohibit is an act of transportation from one State to the other which is followed in the latter by an act within the normal powers of government to prohibit. Commerce, however, is primarily traffic; and the theory of the Child Labor Act was that it was designed to discourage a widespread and pernicious interstate traffic in the products of child labor—pernicious because it bore "a real and substantial relation" to the existence of child labor employment in some States and constituted a direct inducement to its spread to other States. Deprived of the interstate market which this decision secured to it, child labor could not exist.

INTERSTATE COMMERCE IN STOLEN GOODS BANNED

In Brooks v. United States,[516] decided in 1925, the Court, in sustaining the National Motor Vehicle Theft Act of 1919,[517] materially impaired the ratio decidendi of Hammer v. Dagenhart. At the outset of his opinion for the Court, Chief Justice Taft stated the general proposition that "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other States from the State of origin." This statement was buttressed by a review of previous cases, including the explanation that the goods involved in Hammer v. Dagenhart were "harmless" and did not spread harm to persons in other States. Passing then to the measure before the Court, the Chief Justice noted "the radical change in transportation" brought about by the automobile, and the rise of "elaborately organized conspiracies for the theft of automobiles * * *, and their sale or other disposition" in another police jurisdiction from the owner's. This, the opinion declared, "is a gross misuse of interstate commerce. Congress may properly punish such interstate transportation by anyone with knowledge of the theft, because of its harmful result and its defeat of the property rights of those whose machines against their will are taken into other jurisdictions."[518]

The Motor Vehicle Act was sustained, therefore, mainly as protective of owners of automobiles, that is to say, of interests in "the State of origin." It was designed to repress automobile thefts, and that notwithstanding the obvious fact that such thefts must necessarily occur before transportation of the thing stolen can take place, that is, under the formula followed in Hammer v. Dagenhart, before Congress's power over interstate commerce becomes operative. Also, the Court took cognizance of "elaborately organized conspiracies" for the theft and disposal of automobiles across State lines—that, to say, of a widespread traffic in such property.

THE DARBY CASE