than eight hours in any day, or more than six days in any week, or after the hour of 7 o'clock P. M. or before the hour of 6 o'clock A. M.?
The power essential to the passage of this act, the Government contends, is found in the commerce clause of the Constitution which authorizes Congress to regulate commerce with foreign nations and among the States.
In Gibbons v. Ogden... Chief Justice Marshall, speaking for this court, and defining the extent and nature of the commerce power, said, "It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed." In other words, the power is one to control the means by which commerce is carried on, which is directly the contrary of the assumed right to forbid commerce from moving and thus destroy it as to particular commodities. But it is insisted that adjudged cases in this court establish the doctrine that the power to regulate given to Congress incidentally includes the authority to prohibit the movement of ordinary commodities and therefore that the subject is not open for discussion. The cases demonstrate the contrary. They rest upon the character of the particular subjects dealt with and the fact that the scope of governmental authority, state or national, possessed over them is such that the authority to prohibit is as to them but the exertion of the power to regulate....
The first of these cases is Champion v. Ames,...the so-called Lottery Case, in which it was held that Congress might pass a law having the effect to keep the channels of commerce free from use in the transportation of tickets used in the promotion of lottery schemes. In Hipolite Egg Co. v. United States, 220 U.S. 45, this court sustained the power of Congress to pass the Pure Food and Drug Act, which prohibited the introduction into the states by means of interstate commerce of impure foods and drugs....
In Caminetti v. United States, 242 U.S. 470, we held that Congress might prohibit the transportation of women in interstate commerce for the purpose of debauchery and kindred purposes. In Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311... concluding the discussion which sustained the authority of the government to prohibit the transportation of liquor in interstate commerce, the court said: "The exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guaranties of the Constitution, embrace."
In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. In other words, although the power over interstate transportation was to regulate, that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the evil intended.
This element is wanting in the present case. The thing intended to be accomplished by this statute is the denial of the facilities of interstate commerce to those manufacturers in the States who employ children within the prohibited ages. The act in its effect does not regulate transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the States. The goods shipped are of themselves harmless. The act permits them to be freely shipped after thirty days from the time of their removal from the factory. When offered for shipment, and before transportation begins, the labor of their production is over, and the mere fact that they were intended for inter
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Book title: American Constitutional Law:Introductory Essays & Selected Cases. Contributors: Alpheus Thomas Mason - Author, William M. Beaney - Author. Publisher: Prentice Hall. Place of publication: New York. Publication year: 1954. Page number: 278.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.