Readings on the Relation of Government to Property and Industry

By Samuel P. Orth | Go to book overview

VII
TENDENCIES TOWARD FEDERAL CONTROL OF COMMERCE AND INDUSTRY

CONSTITUTIONAL ASPECTS OF FEDERAL REGULATION OF BUSINESS1A paper read before the Western Economic Society at Chicago, March 1, 1912.

BY JAMES PARKER HALL, DEAN OF THE COLLEGE OF LAW, CHICAGO UNIVERSITY

(From the Journal of Political Economy, May, 1912)

It is a consequence of American theories of constitutional government that all important legislation affecting property rights and economic opportunity must at some stage run the gauntlet of professional legal opinion in the courts. It, of course, does not follow that such opinion will necessarily or properly be adverse to such proposals merely because they are novel, nor that the process of obtaining this opinion should be unduly beset by delay and uncertainty. Nor is it meant to arrogate to courts any more than to legislatures, nor to lawyers any more than to sociologists, any permanent or authoritative control over the course of social evolution. Courts and constitutions yield and should yield to the pressure of actual economic and social conditions, just as do the other organs of any government properly responsible to the movements of deliberate public opinion. For the purposes of the present discussion, however, I shall assume the validity of the construction now placed upon the federal Constitution by the courts, and shall briefly inquire what warrant this would give for such regulation of business by the federal government as has been proposed in recent discussion.

At the risk of repeating what is doubtless already well understood, let me first recall that the Constitution divides all powers of government between the states and the United States, save a few which it prohibits altogether, like that of taxing exports. It accomplishes this by granting to the United States certain enumerated powers,

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