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law, it is apparent that, in the opinion of, and not of the codemaker, inspired and dom. a majority of the court, the law, in its main inated the convention. Its members were features at least, would be constitutional not content to frame a system of laws suf

Entertaining these views of the meaning ficient for the present moment, which might, of the statute, I am compelled to go further in a few years, become unsuited to, or inade and consider the other objections to it. I quate for, the needs of the people. They agree entirely with all that was said in the undertook, rather, the task of devising a opinion of Mr. Justice White in support of scheme of government, and of allotting the the power of the Congress to enact a law of powers usually exercised by governments bethis general character, but, as I think that tween the existing states and the prospective the judgments in these cases ought to be re- nation. Whenever such a power came un. versed, I cannot escape dealing with specific der consideration its nature was examined, objections to the statute which he has not and it was then placed in the hands of that deemed it necessary to discuss. I think it governmental agency which it was supposed better, therefore, to deal with all the ques. could exercise it most advantageously. This tions that are necessarily raised in these very power furnishes a signal illustration

of the method pursued. The convention did I come now to the question whether the not determine how interstate statute, thus construed, is in the execution should be regulated, but rather who should of any power conferred by the Constitution regulate it, and left, with certain limitaupon the Congress. It is apparent that tions, the necessity, extent, and nature of there is no such power unless it be found the regulation to the contemporaneous in that clause of the Constitution which au- knowledge, wisdom, and discretion of the thorizes Congress "to regulate commerce body in whom the power was vested. We with foreign nations and among the sev. may well believe that, contemplating the eral states and with the Indian tribes.” It subject with the enlarged vision of those hardly needs to be said that the inability who are building for a future unknown or of the national government created by the dimly discerned, and seeing clearly that in. Articles of Confederation to deal effectively terstate, like foreign, commerce, was, in with commerce one of the efficient the words of the resolutions with which Rancauses of the call for the constitutional con. dolph opened the deliberations of the convention. No doubt the most urgent need of vention, a matter “to which the separate that time was a central government with states are incompetent, or in which the har. powers adequate to control foreign com-mony of the United States may be interruptmerce, but interstate commerce noted by the exercise of individual legislation," overlooked, though its principal importance the convention was constrained to associ. then consisted in its relation to foreign ate the two together in every draft of the commerce. Federalist, No. 42, by Mr. Mad.Constitution proposed, and place them with ison. * No one could then have foreseen the the Indian trade, under the control of the extent of the interestate commerce of our national legislature. Madison's Journal, times, for no one could foretell the employ. Scott's ed. pp. 67, 161, 164, 185, 362, 453, ment of the forces of steam and electricity 654, 656, 704, 753. which have so wonderfully aided its develop The different kinds of commerce described ment. But the statesmen of that time, con have the common qualities that they are fident of the future, and hopeful that they more extensive than the jurisdiction of a might devise a government which would en single state and liable to injury from condure, must have understood that the com- flicting state laws, and thereby are all alike merce which concerned more than one state, distinguished from the purely internal comfrom its essential nature, was in part out merce of the states. There is nothing in side the territorial jurisdiction of any the words of the grant that permits the bestate, could not be governed efficiently by a lief that the power is not coextensive over single state, and, if left outside of the na- foreign, interstate, and Indian trade, or is tional control, would be subject to woeful anything less than the whole power which embarrassment by the conflicting regu- any government may properly exercise over lations of the several states into which either, though it may well be that the reit entered. It appears in the reports strictive parts of the Constitution, its proof the debates that these dangers were hibitions and reservations, may operate difappreciated by the members of the conferently on different kinds of commerce, or vention, so far as they threatened that part even on different aspects of the same kind of the commerce among the states which was of commerce. conducted by water transportation, then the It is said that Congress has never before only part of such commerce of sufficient im- enacted legislation of this nature for the portance to attract public attention. But government of interstate commerce on land, fortunately the spirit of the nation builder,' though it has for the government of such




cominerce upon the water and for the gov- , until they were unloosed by the operation ernment of foreign commerce; that, on the of the steam railroad. The system of steam contrary, the relations affected have been transportation began modestly by the concontrolled by the undoubted power of the struction of short lines, often wholly with. states to govern men and things within their in a single state. These lines were lengthrespective dominions; and that this omis.ened by extensions and consolidations, une sion of Congress is of controlling signifi- til at the present time the states of the

The fundamental fallacy of this ar Union are all bound together by a network gument is that it misunderstands the nature of interstate railroads. Their operation, of the Constitution, undervalues its use aided by the quick and cheap transmission fulness, and forgets that its unchanging pro- of the mails, and the communication of invisions are adaptable to the infinite variety telligence by electricity, has transformed the of the changing conditions of our national commerce of the country. Interstate com. life. Surely, there is no statute of limita merce by land, once so slight as to be untions which bars Congress from the exercise worthy of the attention of the national legof any of its granted powers, nor any au- islature, has come to be the most important thority, save that of the people whom it rep part of all trade, and it is not too much to resents, which may, with propriety, chalo say that the daily needs of the factory and lenge the wisdom of its choice of the time the household are no longer dependent upon when remedies shall first be applied to what the resources of the locality, but are largely it deems wrong. It cannot be doubted that supplied by the products of other states. the exercise of a power for the first time It was not reasonably to be expected that may be called upon to justify itself. The a phenomenon so contrary to the experience fact that it is for the first time is a circum- of mankind, so vast, so rapidly developing stance to be considered. But in this case it and changing, as the growth of land comis a circumstance whose significance disap- merce among the states, would speedily be pears in the light of history. Henry Adams, appreciated in all its aspects, or would at a writer of high duthority, in the first chap- once call forth the exercise of all the unused ter of his History of the United States, has power vested in Congress by the commerce drawn a vivid picture of the conditions of clause of the Constitution. Such a pheour national life at the beginning of the nomenon demands study and experience. nineteenth century. The center of popula. The habit of our people, accentuated by our tion was near Baltimore. The interior was system of representative government, is not almost impenetrable except by the water so much in legislation to anticipate probways and two wagon roads from Philadel. lems as it is to deal with them after experi. phia to Pittsburg and from the Potomac to ence has shown them to exist. So Congress the Monongahela. The scattered settlements has exercised its power sparingly, step by of what was then the Western country were step, and has acted only when experience severed from the seaboard settlements by seemed to it to require action. A descripmountain ranges, and there was little con- tion of its action in this respect was given nection between the two almost independent in Re Debs, 158 U. S. 564, 39 L. ed. 1092, peoples. There was scarcely a possibility of 15 Sup. Ct. Rep. 900, where it was said, p. trade between the states except along the 579: "Congress has exercised the power seacoast and over the dangerous and uncer. granted in respect to interstate commerce tain rivers. “The experience of mankind,” in a variety of legislative acts. Passing by, says the author, p. 7, “proved trade to be for the present, all that legislation in redependent on water communications, and as spect to commerce by water, and considering yet Americans did not dream that the ex. only that which bears upon railroad interperience of mankind was useless to them.” state transportation (for this is the specifica We need not look beyond these conditions matter involved in this case), these acts* mayo for an explanation why Congress, though it be noticed : First. That of June 15th, early and vigorously exercised its power of 1866, chap. 124, 14 Stat. at L. 66, carried legislation over foreign commerce and in into the Revised Statutes as $ 5253 (U. S. terstate commerce by water, left it unused Comp. Stat. 1901, p. 3564), which provides : in respect to interstate commerce on the 'Whereas the Constitution of the United land. As population multiplied, bringing States confers upon Congress, in express the isolated settlements

to each terms, the power to regulate commerce other, wealth increased, creating a wider among the several states, to establish post demand for commodities, and roads and roads, and to raise and support armies: bridges

to be better and more Therefore, be it enacted by the Senate and numerous, doubtless overland commerce House of Representatives of the United was somewhat stimulated. But the iron States of America in Congress assembled, restrictions which nature had placed up- that every railroad company in the United on land transportation. remained constant 'States whose road is operated by steam, its




successors and assigns, be, and is hereby, au- , safety of interstate travel is a matter of thorized to carry upon and over its roads, national concern, and its deliberate purpose boats, bridges, and ferries all passengers, to increase that safety by laws which it troops, government supplies, mails, freight, deems conducive to that end. I think, thereand property on their way from any state fore, that we may consider whether this act to another state, and to receive compensa- finds authority in the commerce clause of tion therefor, and to connect with roads of the Constitution without embarrassment other states so as to form continuous lines from any inferences which may be drawn for the transportation of the same to the from the inaction of Congress. place of destination.' Second. That of March It is settled beyond the necessity of citing 3d, 1873, chap. 252, 17 Stat. at L. 584. (Rev. cases that the transportation of persons and Stat. 88 4386 to 4389, U. S. Comp. Stat. property is commerce; in other words, that 1901, pp. 2995, 2997), which regulates the the business of carriers is commerce. transportation of live stock over interstate Where, therefore, the business is foreign or railroads. Third. That of May 29th, 1884, interstate, Congress, it has frequently been chap. 60, $ 6, 23 Stat. at L. 31, 32, U. S. decided, has the paramount, if not the sole, Comp. Stat. 1901, pp. 299, 3184, prohibiting power to legislate for its direct control. An interstate transportation by railroads of obstruction of such commerce by unlawful live stock affected with any contagious or violence may be made punishable under the infectious disease. Fourth. That of Feb- laws of the United States, suppressed by the ruary 4th, 1887, chap. 104, 24 Stat. at L. armies of the United States, or, at the in379, U. S. Comp. Stat. 1901, p. 3154, with stance of the United States, enjoined in its its amendments of March 2d, 1889, chap. courts. Re Debs, ubi supra. It is difficult 382, 25 Stat. at L. 855, U. S. Comp. Stat. to conceive how legislation may effectively 1901, p. 3158, and February 10th, 1891, chap. control the business if it cannot regulate 128, 26 Stat, at L. 743, U. S. Comp. Stat. the conduct of those engaged in the business, 1901, p. 3163, known as the 'interstate com while engaged in the business, in every act merce act,' by which a commission was cre- which is performed in the conduct of the ated with large powers of regulation and business. The business of transportation control of interstate commerce by railroads, is not an abstraction. It is the labor and the 16th section of which act gives to of men, employed, with the aid of the courts of the United States power to en- instrumentalities, animal and mechanicforce the orders of the commission. Fifth. al, in carrying men and things from That of October 1st, 1888, chap. 1063, 25 place to place. In every form of transportaStat, at L. 501, providing for arbitration be- tion, from the simplest to the most complex, tween railroad interstate companies and whether the man carries the burden on his their employees. And, sixth, the act of back, or drives an animal which carries it, March 2d, 1893, chap. 196, 27 Stat. at L or & locomotive which draws a car which 531, U. S. Comp. Stat. 1901, p. 3174, requir- carries it, the one and only constant factor ing the use of automatic couplers on inter is the labor of mankind. I am quite un. state trains, and empowering the Interstate able to understand the contention made at Commerce Commission to enforce its pro the bar that the power of Congress is to reg. visions.”

ulate commerce among the states, and not to Since this decision other laws more fully regulate persons engaged in commerce among regulating interstate commerce on land have the states, for, in the case of transporta• been enacted, which need not here be stated. tion, at least, the labor of those engaged in

They show a constantly increasing tendency it is commerce itself. How poor and meager to exercise more fully and vigorously the the power would be if, whenever it was ex. power conferred by the commerce clause. It ercised, the legislator must pause to consid. is well to notice, however, that Congress has er whether the action proposed regulated assumed the duty of promoting the safety commerce or merely regulated the conduct of of public travel by enacting the safety ap- persons engaged in commerce. The contenpliance law; an act to require reports of tion derives some plausibility from its casualties to employees or passengers (31 vagueness. Of course, the power to regulate Stat, at L. 1446, chap. 866, U. S. Comp. commerce does not authorize Congress to Stat. 1901, p. 3176); a resolution directing control the general conduct of persons enthe Interstate Commerce Commission to in-gaged therein, but, unless it is an idle and vestigate and report on the necessity for useless power, it authorizes Congress to conblock signals (34 Stat. at L. 838, U. S. trol the conduct of persons engaged in comComp. Stat. Supp. 1907, p. 912); an act | merce in respect to everything which directlimiting the hours of service of employees; ly concerns commerce, for that is commerce and the act under consideration. These acts, itself. It would seem, therefore, that when all relating to interstate transportation, persons are employed in interstate or fordemonstrate the belief of Congress that the 'eign commerce, as the employment is an es

sential part of that commerce, its terms and 688, 18 Sup. Ct. Rep. 289, a state statute conditions, and the rights and duties which forbidding a contract limiting liability for grow out of it, are under the control of injury was sustained, the court, by Mr. JusCongress, subject only to the limits on the tice Gray, saying: “The rules prescribed exercise of that control prescribed in the for the construction of railroads, and for Constitution. This has been the view al- their management and operation, designed to ways expressed or implied by this court. protect persons and property otherwise en. In his concurring opinion in Gibbons v. Og dangered by their use, are strictly within den, 9 Wheat. 1, 6 L. ed. 23, Mr. Justice the scope of the local law. They are not, in Johnson said, p. 229: "Commerce, in its themselves, regulations of interstate comsimplest signification, means an exchange of merce, although they control, in some degoods; but, in the advancement of society, gree, the conduct and the liability of those labor, transportation, intelligence, care, and engaged in such commerce. So long as Con-various mediums of exchange become com- gress has not legislated upon the particular modities and enter into commerce; the sub- subject, they are rather to be regarded as ject, the vehicle, the agent, and their vari- legislation in aid of such commerce, and as ous operations, become the objects of com a rightful exercise of the police power of the mercial regulations." In Cooley v. Port state to regulate the relative rights and duWardens, 12 How. 299, 13 L. ed. 996, the ties of all persons and corporations within court, in holding inter alia that a regulation its limits." This statement was assumed to of pilots is a regulation of commerce within be true in Pennylvania R. Co. v. Hughes, the meaning of the commerce clause, *said 191 U. S. 477, 48 L. ed. 268, 24 Sup. Ct. (p. 316 by Justice Curtis) of the power: "It Rep. 132, and Martin v. Pittsburg & L. E. R. extends to the persons who conduct it as well Co. 203 U. S. 284, 51 L. ed. 184, 27 Sup. as to the instruments used.” In the opinion Ct. Rep. 100. The case of Peirce v. Van of the court, delivered by Mr. Justice Field, Dusen, 69 L.R.A. 705, 24 C. C. A. 280, 47 in Sherlock v. Alling, 93 U. S. 99, 23 L. ed. U. S. App. 339, 78 Fed. 693, was decided by 819, it was said: “It is true that the com the court of appeals of the sixth circuit by mercial power conferred by the Constitution Mr. Justice Harlan and Judges Taft and is one without limitation. It authorizes Lurton. The opinion was delivered by Mr. legislation with respect to all the subjects Justice Harlan. After sustaining a state of foreign and interstate commerce, the per- statute which modified the common-law rules bons engaged in it, and the instruments by with respect to the liability for injuries of which it is carried on.” In delivering the a carrier to its employees, he said of it: opinion of the court in Smith v. Alabama, “The Ohio statute is not applicable alone to 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. railroad corporations of Ohio, engaged in Rep. 804, 8 Sup. Ct. Rep. 564, where a state the domestic commerce of this state. It is statute requiring interstate locomotive en- equally applicable to railroad corporations gineers to obtain a license after a quali- doing business in Ohio, and engaged in comfying examination, and imposing a penalty merce among the states, although the statfor operating without such license, was ute, in its operation, may effect in some desustained, Mr. Justice Matthews said: “It gree a subject over which Congress can exwould, indeed, be competent for Congress to ert full power. The states may do many legislate upon its subject-matter and to pre- things affecting commerce with foreign nascribe the qualifications of locomotive en- tions and among the several states until gineers for employment by carriers engaged Congress covers the subject by national leg. in foreign or interstate commerce.” In sus. islation.

Undoubtedly the whole taining a similar state statute, directed subject of the liability of interstate railagainst color blindness, Mr. Justice Field road companies for the negligence of those said, in Nashville, C. & St. L. R. Co. v. in their service may be covered by national Alabama, 128 U. S. 96, 32 L. ed. 352, 2 legislation enacted by Congress under its Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28: power to regulate commerce among the "It is conceded that the power of Congress states.” to regulate interstate commerce is plenary; We may not trust implicitly to the acthat, as incident to it, Congress may legis.curacy of statements gathered from opinions late as to the qualifications, duties, and lia- where the precise question was not for debilities of employees and others on railway cision. But where, as in these quotations, trains engaged in that commerce, and that the statements were an essential part of such legislation will supersede any state ac the course of reasoning deemed appropriate tion on the subject. But, until such legisla for the disposition of the cases, where the tion is had, it is clearly within the com same thought, clothed in different words, petency of the states to provide against ac has been expressed at intervals from early cidents on trains.” In Chicago, M. & St. times to the present day, and where no deP. R. Co. v. Solan, 169 U. 8. 133, 42 L. ed.'cision or judicial utterance has been found


in opposition to them, they are entitled to, Congress to fix upon the carrier a liability profound respect, and furnish cogent evi- for an insufficient brake but not for a dedence of what the law has always been sup- fective rail, for the absence of automatio posed to*be by the members of this court. couplers, but not for the negligent order They cannot be regarded lightly, and if we which brings trains into collision, for an infollow them they lead us to the conclusion secure grab iron, but not for a heedless that the national power to regulate com- switchman. If Congress has the right to merce is broad enough to regulate the em control the liability in any way it may conployment, duties, obligations, liabilities, and trol it in every way, subject, as all powers conduct of all persons engaged in commerce are subject, to the express prohibitions of with respect to all which is comprehended the Constitution. Unless the cases on the in that commerce. Upon what principle ex safety appliance acts are deemed to have cept this could this court have twice en been inadvertently decided, they seem to be forced the safety appliance act, undisturbed conclusive of this branch of the case. This by a doubt of its constitutionality? John seems to have been feared by counsel for son v. Southern P. Co. 196 U. S. 1, 49 L. one of the defendants, who, in his brief, ed. 363, 25 Sup. Ct. Rep. 158; Schlemmer v. said “that the giving of a right of recovery Buffalo, R. & P. R. Co. 205 U. S. 1, 51 L. to an injured employee is a proper and neoed. 681, 27 Sup. Ct. Rep. 407. That act (27 essary method for making effective the safeStat. at L. 531, chap. 196, U. S. Comp. Stat. ty appliance act

we do not admit." 1901, p. 3174) compelled interstate railroads But, if we put aside the authority of to equip all their trains with power brakes precedents, and examine the nature and exoperated from the engine, and all their cars tent of the grant to Congress of power over with automatic couplers, grab irons, and commerce in the light of the settled prin. hand holds, by enacting that the use of enciples of interpretation fit to be applied to gines and cars not thus equipped should be the ex position of a constitution, we shall ar. unlawful. There was no express provision rive at the same result. One main purpose that an employee injured by the failure of and effect of the Constitution was to devise a railroad to comply with the law should a scheme of efficient government. In order been entitled to damages, but without doubt to accomplish this all the powers usually the liability of the railroad is implied. The exercised by governments were distributed be common-law rule governing the liability was tween the states and the nation, except those materially changed by $ 8, which abolished deemed unfit or unsafe to be intrusted to in part the doctrine of the assumption of either and withheld from both. In the allotrisk, by providing that the employee should ment of powers to the nation they were “not be deemed to have assumed the risk” of enumerated rather than defined. In the the unlawful conditions, though he knew of enumeration, words of the largest import them and continued in his employment. This were employed, comprehending within their section was enforced in most emphatic man- meaning grand divisions of the powers of ner in the Schlemmer Case, where Mr. Jus- government. The nature of the Constitutice Holmes said: “An early, if not the tion, said Chief Justice Marshall (M'Cul. earliest, application of the phrase 'assump loch v. Maryland, 4 Wheat. p. 407, 4 L. ed. tion of risk' was the establishment of the 601), “requires that only its great outlines exception to the liability of a master for the should be marked, its important objects negligence of his servant when the person designated, and*the minor ingredients which injured was a fellow servant of the negligent compose those objects be deduced from the man.” If the statute now before us is be- nature of the objects themselves." The wide yond the constitutional power of Congress, extent of the powers granted to Congress is surely the safety appliance act is also void, expressed in a few simply-worded provisions, for there can be no distinction in principle all of which might be printed on a single between them. If Congress can create a lia- page of its book of annual laws. Counsel bility to an injured employee for the exist. have argued that the power to regulate comence of conditions in certain mechanisms merce does not include the power to regulate which he uses, by declaring those conditions the conduct of persons engaged in that comunlawful, it may create the same liability merce in respect of that commerce. This for negligence of the agents and imperfec. is what Mr. Justice Miller (Ex parte Yartions in the instruments used in the car. brough, 110 U. S. 658, 28 L. ed. 276, 4 Sup. rier's work; if it may change the common. Ct. Rep. 155) described as “the old argulaw rule of the assumption of the risk of imment, often heard, often repeated, and in perfect appliances, it may change the rule this court never assented to, that, when a of the assumption of the risk of a careless question of the power of Congress arises, fellow servant. I can conceive of no prin- the advocate of the power must be able to ciple of constitutional law which enables us place his finger on words which expressly to say that the commerce clause authorizes grant it." Suppose that method of reason


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