U.S. Supreme Court Selective Draft Law Cases, 245
U.S. 366 (1918) Selective Draft Law
Cases Nos. 663, 664, 665, 666, 681,
769 Argued December 13, 14,
1917 Decided January 7, 1918 245
U.S. 366 |>* 245
U.S. 366 ERROR TO THE DISTRICT COURTS OF THE
UNITED STATES FOR THE DISTRICT OF MINNESOTA AND
THE SOUTHERN DISTRICT OF NEW
YORK Syllabus The grant to Congress of power to raise and support armies,
considered in conjunction with the grants of the powers to declare
war, to make rules for the government and regulation of the land
and naval forces, and to make laws necessary and proper for
executing granted powers (Constitution, Art. I, § 8), includes the
power to compel military service, exercised by the Selective Draft
Law of May 18, 1917, c. 15, 40 Stat. 76. This conclusion, obvious
upon the face of the Constitution, is confirmed by an historical
examination of the subject.

															The army power, combining the powers vested in the Congress and
the States under the Confederation, embraces the complete military
power of government, as is manifested not only by the grant made,
but by the express limitation of Art. I, § 10, prohibiting the
States, without the consent of Congress, from keeping troops in
time of peace or engaging in war.

															The militia power reserved to the States by the militia clause
(Art. I, § 8), while separate and distinct in its field, and while
serving to diminish occasion for exercising the army power, is
subject to be restricted in, or even deprived of, its area of
operation through the army power, according to the extent to which
Congress, in its discretion, finds necessity for calling the latter
into play.

															The service which may be exacted of the citizen under the army
power is not limited to the specific purposes for which Congress
is Page 245 U. S. 367 expressly authorized, by the militia clause, to call the
militia; the presence in the Constitution of such express
regulations affords no basis for an inference that the army power,
when exerted, is not complete and dominant to the extent of its
exertion.

															Compelled military service is neither repugnant to a free
government nor in conflict with the constitutional guaranties of
individual liberty. Indeed, it may not be doubted that the very
conception of a just government and its duty to the citizen
includes the duty of the citizen to render military service in case
of need, and the right of the government to compel it.

															The power of Congress to compel military service as in the
Selective Draft Law, clearly sustained by the original
Constitution, is even more manifest under the Fourteenth Amendment,
which, as frequently has been pointed out, broadened the national
scope of the government by causing citizenship of the United States
to be paramount and dominant, instead of being subordinate and
derivative, thus operating generally upon the powers conferred by
the Constitution.

															The constitutionality of the Selective Draft Law also is upheld
against the following objections: (1) That, by some of its
administrative features, it delegates federal power to state
officials; (2) that it vests both legislative and judicial power in
administrative officers; (3) that, by exempting ministers of
religion and theological students under certain conditions and by
relieving from strictly military service members of certain
religious sects whose tenets deny the moral right to engage in war,
it is repugnant to the First Amendment, as establishing or
interfering with religion, and (4) that it creates involuntary
servitude in violation of the Thirteenth Amendment.

															Affirmed.

															The cases are stated in the opinion. Page 245 U. S. 375 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

															We are here concerned with some of the provisions of the Act of
May 18, 1917, c. 15, 40 Stat. 76, entitled "An Act to authorize the
President to increase temporarily the Military Establishment of the
United States." The law, as its opening sentence declares, was
intended to supply temporarily the increased military force which
was required by the existing emergency, the war then and now
flagrant. The clauses we must pass upon and those which will throw
light on their significance are briefly summarized:

															The act proposed to raise a national army, first by increasing
the regular force to its maximum strength and there maintaining it;
second, by incorporating into such army the members of the National
Guard and National Guard Reserve already in the service of the
United States (Act of Congress of June 3, 1916, c. 134, 39 Stat.
211) and maintaining their organizations to their full strength;
third, by giving the President power, in his discretion, to
organize by volunteer enlistment four divisions of infantry;
fourth, by subjecting all male citizens between the ages of
twenty-one and thirty to duty in the national army for the period
of the existing emergency after the proclamation of the President
announcing the necessity for their service, and, fifth, by
providing for Page 245 U. S. 376 selecting from the body so called, on the further proclamation
of the President, 500,000 enlisted men and a second body of the
same number, should the President in his discretion deem it
necessary. To carry out its purposes, the act made it the duty of
those liable to the call to present themselves for registration on
the proclamation of the President, so as to subject themselves to
the terms of the act, and provided full federal means for carrying
out the selective draft. It gave the President, in his discretion,
power to create local boards to consider claims for exemption for
physical disability or otherwise made by those called. The act
exempted from subjection to the draft designated United States and
state officials, as well as those already in the military or naval
service of the United States, regular or duly ordained ministers of
religion and theological students under the conditions provided
for, and, while relieving from military service in the strict sense
the members of religious sects as enumerated whose tenets excluded
the moral right to engage in war, nevertheless subjected such
persons to the performance of service of a noncombatant character
to be defined by the President.

															The proclamation of the President calling the persons designated
within the ages described in the statute was made, and the
plaintiffs in error, who were in the class and, under the statute,
were obliged to present themselves for registration and subject
themselves to the law, failed to do so, and were prosecuted under
the statute for the penalties for which it provided. They all
defended by denying that there had been conferred by the
Constitution upon Congress the power to compel military service by
a selective draft, and asserted that, even if such power had been
given by the Constitution to Congress, the terms of the particular
act for various reasons caused it to be beyond the power and
repugnant to the Constitution. The cases are here for review
because of the constitutional Page 245 U. S. 377 questions thus raised, convictions having resulted from
instructions of the courts that the legal defences were without
merit, and that the statute was constitutional.

															The possession of authority to enact the statute must be found
in the clauses of the Constitution giving Congress power

															"to declare war; . . . to raise and support armies, but no
appropriation of money to that use shall be for a longer term than
two years; . . . to make rules for the government and regulation of
the land and naval forces."

															Article I, § 8. And, of course, the powers conferred by these
provisions, like all other powers given, carry with them, as
provided by the Constitution, the authority "to make ah laws which
shall be necessary and proper for carrying into execution the
foregoing powers." Article I, § 8.

															As the mind cannot conceive an army without the men to compose
it, on the face of the Constitution, the objection that it does not
give power to provide for such men would seem to be too frivolous
for further notice. It is said, however, that since, under the
Constitution as originally framed, state citizenship was primary,
and United States citizenship but derivative and dependent thereon,
therefore the power conferred upon Congress to raise armies was
only coterminous with United States citizenship, and could not be
exerted so as to cause that citizenship to lose its dependent
character and dominate state citizenship. But the proposition
simply denies to Congress the power to raise armies which the
Constitution gives. That power, by the very terms of the
Constitution being delegated, is supreme. Article VI. In truth, the
contention simply assails the wisdom of the framers of the
Constitution in conferring authority on Congress, and in not
retaining it as it was under the Confederation in the several
States. Further, it is said, the right to provide is not denied by
calling for volunteer enlistments, but it does not and Page 245 U. S. 378 cannot include the power to exact enforced military duty by the
citizen. This however but challenges the existence of all power,
for a governmental power which has no sanction to it and which
therefore can only be exercised provided the citizen consents to
its exertion is in no substantial sense a power. It is argued,
however, that, although this is abstractly true, it is not
concretely so, because, as compelled military service is repugnant
to a free government and in conflict with all the great guarantees
of the Constitution as to individual liberty, it must be assumed
that the authority to raise armies was intended to be limited to
the right to call an army into existence counting alone upon the
willingness of the citizen to do his duty in time of public need,
that is, in time of war. But the premise of this proposition is so
devoid of foundation that it leaves not even a shadow of ground
upon which to base the conclusion. Let us see if this is not at
once demonstrable. It may not be doubted that the very conception
of a just government and its duty to the citizen includes the
reciprocal obligation of the citizen to render military service in
case of need, and the right to compel it. Vattel, Law of Nations,
Book III, c. 1 & 2. To do more than state the proposition is
absolutely unnecessary in view of the practical illustration
afforded by the almost universal legislation to that effect now in
force. [ Footnote 1 ] In England,
it is certain that, before the Page 245 U. S. 379 Norman Conquest, the duty of the great militant body of the
citizens was recognized and enforceable. Blackstone, Book I, c. 13.
It is unnecessary to follow the long controversy between Crown and
Parliament as to the branch of the government in which the power
resided, since there never was any doubt that it somewhere resided.
So also, it is wholly unnecessary to explore the situation for the
purpose of fixing the sources whence, in England, it came to be
understood that the citizen or the force organized from the militia
as such could not, without their consent, be compelled to render
service in a foreign country, since there is no room to contend
that such principle ever rested upon any challenge of the right of
Parliament to impose compulsory duty upon the citizen to perform
military duty wherever the public exigency exacted, whether at home
or abroad. This is exemplified by the present English Service Act.
[ Footnote 2 ]

															In the Colonies before the separation from England, there cannot
be the slightest doubt that the right to enforce military service
was unquestioned, and that practical effect was given to the power
in many cases. Indeed, Page 245 U. S. 380 the brief of the Government contains a list of Colonial acts
manifesting the power and its enforcement in more than two hundred
cases. And this exact situation existed also after the separation.
Under the Articles of Confederation, it is true Congress had no
such power, as its authority was absolutely limited to making calls
upon the States for the military forces needed to create and
maintain the army, each State being bound for its quota as called.
But it is indisputable that the States, in response to the calls
made upon them, met the situation when they deemed it necessary by
directing enforced military service on the part of the citizens. In
fact, the duty of the citizen to render military service and the
power to compel him against his consent to do so was expressly
sanctioned by the constitutions of at least nine of the States, an
illustration being afforded by the following provision of the
Pennsylvania constitution of 1776.

															"That every member of society hath a right to be protected in
the enjoyment of life, liberty and property, and therefore is bound
to contribute his proportion towards the expense of that
protection, and yield his personal service when necessary, or an
equivalent thereto."

															Art. 8, (Thorpe, American Charters, Constitutions and Organic
Laws, vol. 5, pp. 3081, 3083). [ Footnote 3 ] While it is true that the States were
sometimes slow in exerting the power in order to fill their quotas
-- a condition shown by resolutions of Congress calling upon them
to comply by exerting their compulsory power to draft and by
earnest requests by Washington to Congress that a demand be made
upon the States to Page 245 U. S. 381 resort to drafts to fill their quotas [ Footnote 4 ] -- that fact serves to demonstrate, instead
of to challenge, the existence of the authority. A default in
exercising a duty may not be resorted to as a reason for denying
its existence.

															When the Constitution came to be formed, it may not be disputed
that one of the recognized necessities for its adoption was the
want of power in Congress to raise an army and the dependence upon
the States for their quotas. In supplying the power, it was
manifestly intended to give it all, and leave none to the States,
since, besides the delegation to Congress of authority to raise
armies, the Constitution prohibited the States, without the consent
of Congress, from keeping troops in time of peace or engaging in
war. Article I, § 10.

															To argue that, as the state authority over the militia prior to
the Constitution embraced every citizen, the right of Congress to
raise an army should not be considered as granting authority to
compel the citizen's service in the army is but to express in a
different form the denial of the right to call any citizen to the
army. Nor is this met by saying that it does not exclude the right
of Congress to organize an army by voluntary enlistments, that is,
by the consent of the citizens, for, if the proposition be true,
the right of the citizen to give consent would be controlled by the
same prohibition which would deprive Congress of the right to
compel unless it can be said that, although Congress had not the
right to call because of state authority, the citizen had a right
to obey the call and set aside state authority if he pleased to do
so. And a like conclusion demonstrates the want of foundation for
the contention that, although it be within the power to call the
citizen into the army without his consent, the army into which he
enters after the call is to be limited Page 245 U. S. 382 in some respects to services for which the militia, it is
assumed, may only be used, since this admits the appropriateness of
the call to military service in the army and the power to make it,
and yet destroys the purpose for which the call is authorized --
the raising of armies to be under the control of the United
States.

															The fallacy of the argument results from confounding the
constitutional provisions concerning the militia with that
conferring upon Congress the power to raise armies. It treats them
as one, while they are different. This is the militia clause:

															"The Congress shall have power . . . To provide for calling
forth the militia to execute the laws of the Union, suppress
insurrections and repel invasions; To provide for organizing,
arming, and disciplining the militia, and for governing such part
of them as may be employed in the service of the United States,
reserving to the States, respectively, the appointment of the
officers, and the authority of training the militia according to
the discipline prescribed by Congress."

															Article I, § 8.

															The line which separates it from the army power is not only
inherently plainly marked by the text of the two clauses, but will
stand out in bolder relief by considering the condition before the
Constitution was adopted and the remedy which it provided for the
military situation with which it dealt. The right, on the one hand,
of Congress under the Confederation to call on the States for
forces, and the duty, on the other, of the States to furnish when
called, embraced the complete power of government over the subject.
When the two were combined and were delegated to Congress, all
governmental power on that subject was conferred, a result
manifested not only by the grant made, but by the limitation
expressly put upon the States on the subject. The army sphere
therefore embraces such complete authority. But the duty of
exerting the power thus conferred in all its plenitude was not Page 245 U. S. 383 made at once obligatory, but was wisely left to depend upon the
discretion of Congress as to the arising of the exigencies which
would call it in part or in whole into play. There was left,
therefore, under the sway of the States undelegated, the control of
the militia to the extent that such control was not taken away by
the exercise by Congress of its power to raise armies. This did not
diminish the military power or curb the full potentiality of the
right to exert it, but left an area of authority requiring to be
provided for (the militia area) unless and until, by the exertion
of the military power of Congress, that area had been circumscribed
or totally disappeared. This, therefore, is what was dealt with by
the militia provision. It diminished the occasion for the exertion
by Congress of its military power beyond the strict necessities for
its exercise by giving the power to Congress to direct the
organization and training of the militia (evidently to prepare such
militia in the event of the exercise of the army power), although
leaving the carrying out of such command to the States. It further
conduced to the same result by delegating to Congress the right to
call, on occasions which were specified, for the militia force,
thus again obviating the necessity for exercising the army power to
the extent of being ready for every conceivable contingency. This
purpose is made manifest by the provision preserving the
organization of the militia so far as formed when called for such
special purposes, although subjecting the militia when so called to
the paramount authority of the United States. Tarble's
Case , 13 Wallace, 397, 80 U. S. 408 .
But because, under the express regulations, the power was given to
call for specified purposes without exerting the army power, it
cannot follow that the latter power, when exerted, was not complete
to the extent of its exertion and dominant. Because the power of
Congress to raise armies was not required to be exerted to its full
limit, but only as in the discretion of Congress it was deemed the
public Page 245 U. S. 384 interest required, furnishes no ground for supposing that the
complete power was lost by its partial exertion. Because, moreover,
the power granted to Congress to raise armies in its potentiality
was susceptible of narrowing the area over which the militia clause
operated affords no ground for confounding the two areas which were
distinct and separate to the end of confusing both the powers, and
thus weakening or destroying both.

															And, upon this understanding of the two powers, the legislative
and executive authority has been exerted from the beginning. From
the act of the first session of Congress carrying over the army of
the Government under the Confederation to the United States under
the Constitution (Act of September 29, 1789, c. 25, 1 Stat. 95)
down to 1812, the authority to raise armies was regularly exerted
as a distinct and substantive power, the force being raised and
recruited by enlistment. Except for one act formulating a plan by
which the entire body of citizens (the militia) subject to military
duty was to be organized in every State (Act of May 8, 1792, c. 33,
1 Stat. 271) which was never carried into effect, Congress confined
itself to providing for the organization of a specified number
distributed among the States according to their quota, to be
trained as directed by Congress and to be called by the President
as need might require. [ Footnote
5 ] When the War of 1812 came, the result of these two forces
composed the army to be relied upon by Congress to carry on the
war. Either because it proved to be weak in numbers or because of
insubordination developed among the forces called and manifested by
their refusal to cross the border, [ Footnote 6 ] Page 245 U. S. 385 the Government determined that the exercise of the power to
organize an army by compulsory draft was necessary, and Mr. Monroe,
the Secretary of War (Mr. Madison being President), in a letter to
Congress, recommended several plans of legislation on that subject.
It suffices to say that by each of them it was proposed that the
United States deal directly with the body of citizens subject to
military duty, and call a designated number out of the population
between the ages of 18 and 45 for service in the army. The power
which it was recommended be exerted was clearly an unmixed federal
power dealing with the subject from the sphere of the authority
given to Congress to raise armies, and not from the sphere of the
right to deal with the militia as such, whether organized or
unorganized. A bill was introduced giving effect to the plan.
Opposition developed, but we need not stop to consider it, because
it substantially rested upon the incompatibility of compulsory
military service with free government, a subject which, from what
we have said, has been disposed of. Peace came before the bill was
enacted.

															Down to the Mexican War, the legislation exactly portrayed the
same condition of mind which we have previously stated. In that
war, however, no draft was suggested, because the army created by
the United States immediately resulting from the exercise by
Congress of its power to raise armies, that organized under its
direction from the militia and the volunteer commands which were
furnished, proved adequate to carry the war to a successful
conclusion.

															So the course of legislation from that date to 1861 affords no
ground for any other than the same conception of legislative power
which we have already stated. In that year, when the mutterings of
the dread conflict which was to come began to be heard and the
Proclamation of the President calling a force into existence was
issued, it Page 245 U. S. 386 was addressed to the body organized out of the militia and
trained by the States in accordance with the previous acts of
Congress. (Proclamation of April 15, 1861, 12 Stat. 1258.) That
force being inadequate to meet the situation, an act was passed
authorizing the acceptance of 500,000 volunteers by the President
to be by him organized into a national army. (Act of July 22, 1861,
c. 9, 12 Stat. 268.) This was soon followed by another act
increasing the force of the militia to be organized by the States
for the purpose of being drawn upon when trained under the
direction of Congress (Act of July 29, 1861, c. 25, 12 Stat. 281),
the two acts, when considered together, presenting in the clearest
possible form the distinction between the power of Congress to
raise armies and its authority under the militia clause. But it
soon became manifest that more men were required. As a result, the
Act of March 3, 1863, c. 75, 12 Stat. 731, was adopted, entitled
"An Act for enrolling and calling out the National Forces and for
other purposes." By that act, which was clearly intended to
directly exert upon all the citizens of the United States the
national power which it had been proposed to exert in 1814 on the
recommendation of the then Secretary of War, Mr. Monroe, every male
citizen of the United States between the ages of twenty and
forty-five was made subject by the direct action of Congress to be
called by compulsory draft to service in a national army at such
time and in such numbers as the President in his discretion might
find necessary. In that act, as in the one of 1814 and in this one,
the means by which the act was to be enforced were directly
federal, and the force to be raised as a result of the draft was
therefore typically national, as distinct from the call into active
service of the militia as such. And under the power thus exerted,
four separate calls for draft were made by the President and
enforced, that of July, 1863, of February and March, 1864, of July
and December, Page 245 U. S. 387 1864, producing a force of about a quarter of a million men.
[ Footnote 7 ] It is undoubted
that the men thus raised by draft were treated as subject to direct
national authority and were used either in filling the gaps
occasioned by the vicissitudes of war in the ranks of the existing
national forces or for the purpose of organizing such new units as
were deemed to be required. It would be childish to deny the value
of the added strength which was thus afforded. Indeed, in the
official report of the Provost Marshal General, just previously
referred to in the margin, reviewing the whole subject, it was
stated that it was the efficient aid resulting from the forces
created by the draft at a very critical moment of the civil strife
which obviated a disaster which seemed impending, and carried that
struggle to a complete and successful conclusion.

															Brevity prevents doing more than to call attention to the fact
that the organized body of militia within the States as trained by
the States under the direction of Congress became known as the
National Guard (Act of January 21, 1903, c. 196, 32 Stat. 775;
National Defense Act of June 3, 1916, c. 134, 39 Stat. 211). And,
to make further preparation from among the great body of the
citizens, an additional number to be determined by the President
was directed to be organized and trained by the States as the
National Guard Reserve. (National Defense Act, supra. )

															Thus, sanctioned as is the act before us by the text of the
Constitution and by its significance as read in the light of the
fundamental principles with which the subject is concerned, by the
power recognized and carried into effect in many civilized
countries, by the authority and practice of the colonies before the
Revolution, of the States under the Confederation, and of the
Government Page 245 U. S. 388 since the formation of the Constitution, the want of merit in
the contentions that the act in the particulars which we have been
previously called upon to consider was beyond the constitutional
power of Congress is manifest. Cogency, however, if possible, is
added to the demonstration by pointing out that, in the only case
to which we have been referred where the constitutionality of the
Act of 1863 was contemporaneously challenged on grounds akin to, if
not absolutely identical with, those here urged, the validity of
the act was maintained for reasons not different from those which
control our judgment. ( Kneedler v. Lane, 45 Pa.St. 238.)
And as further evidence that the conclusion we reach is but the
inevitable consequence of the provisions of the Constitution as
effect follows cause, we briefly recur to events in another
environment. The seceding States wrote into the constitution which
was adopted to regulate the government which they sought to
establish, in identical words, the provisions of the Constitution
of the United States which we here have under consideration. And
when the right to enforce under that instrument a selective draft
law which was enacted, not differing in principle from the one here
in question, was challenged, its validity was upheld, evidently
after great consideration, by the courts of Virginia, of Georgia,
of Texas, of Alabama, of Mississippi, and of North Carolina, the
opinions in some of the cases copiously and critically reviewing
the whole grounds which we have stated. Burroughs v.
Peyton, 16 Gratt. 470; Jeffers v. Fair, 33 Georgia,
347; Daly and Fitzgerald v. Harris, 33 Ga. (Supp.) 38, 54; Barber v. Irwin, 34 Georgia, 27; Parker v.
Kaughman, 34 Georgia, 136; Ex parte Coupland, 26
Texas, 386; Ex parte Hill, 38 Alabama, 429; In re
Emerson, 39 Alabama, 437; In re Pille, 39 Alabama,
459; Simmons v. Miller, 40 Mississippi 19; Gatlin v.
Walton, 60 N.Car. 333, 408.

															In reviewing the subject, we have hitherto considered Page 245 U. S. 389 it, as it has been argued, from the point of view of the
Constitution as it stood prior to the adoption of the Fourteenth
Amendment. But to avoid all misapprehension, we briefly direct
attention to that Amendment for the purpose of pointing out, as has
been frequently done in the past, [ Footnote 8 ] how completely it broadened the national scope
of the Government under the Constitution by causing citizenship of
the United States to be paramount and dominant, instead of being
subordinate and derivative, and therefore, operating as it does
upon all the powers conferred by the Constitution, leaves no
possible support for the contentions made, if their want of merit
was otherwise not so clearly made manifest.

															It remains only to consider contentions which, while not
disputing power, challenge the act because of the repugnancy to the
Constitution supposed to result from some of its provisions. First,
we are of opinion that the contention that the act is void as a
delegation of federal power to state officials because of some of
its administrative features is too wanting in merit to require
further notice. Second, we think that the contention that the
statute is void because vesting administrative officers with
legislative discretion has been so completely adversely settled as
to require reference only to some of the decided cases. Field
v. Clark, 143 U. S. 649 ; Buttfield v. Stranahan, 192 U. S. 470 ; Intermountain Rate Cases, 234 U.
S. 476 ; First National Bank v. Union Trust Co., 244 U. S. 416 . A
like conclusion also adversely disposes of a similar claim
concerning the conferring of judicial power. Buttfield v.
Stranahan, 192 U. S. 470 , 192 U. S. 497 ; West v. Hitchcock, 205 U. S. 80 ; Oceanic Steam Navigation Co. v. Stranahan, 214 U.
S. 320 , 214 U. S.
338 -340; Zakonaite v. Wolf, 226 U.
S. 272 , 226 U. S. 275 .
And we pass without anything but statement Page 245 U. S. 390 the proposition that an establishment of a religion or an
interference with the free exercise thereof repugnant to the First
Amendment resulted from the exemption clauses of the act to which
we at the outset referred, because we think its unsoundness is too
apparent to require us to do more.

															Finally, as we are unable to conceive upon what theory the
exaction by government from the citizen of the performance of his
supreme and noble duty of contributing to the defense of the rights
and honor of the nation, as the result of a war declared by the
great representative body of the people, can be said to be the
imposition of involuntary servitude in violation of the
prohibitions of the Thirteenth Amendment, we are constrained to the
conclusion that the contention to that effect is refuted by its
mere statement. Affirmed. | 245
U.S. 366 |

															* The docket titles of these cases are: Arver v. United
States, No. 663, Grahl v. United States, No. 664, Otto Wangerin v. United States, No. 665, Walter
Wangerin v. United States, No. 666, in error to the District
Court of the United States for the District of Minnesota; Kramer v. United States, No. 681, Graubard v. United
States, No. 769, in error to the District Court of the United
States for the Southern District of New York.

															[ Footnote 1 ]

															In the argument of the Government, it is stated:

															"The Stateman's Year-book for 1917 cites the following
governments as enforcing military service: Argentine Republic, p.
656; Austria-Hungary, p. 667; Belgium, p. 712; Brazil, p. 738;
Bulgaria, p. 747; Bolivia, p. 728; Colombia, p. 790; Chile, p. 754;
China, p. 770; Denmark, p. 811; Ecuador, p. 820; France, p. 841;
Greece, p. 1001; Germany, p. 914; Guatemala, p. 1009; Honduras, p.
1018; Italy, p. 1036; Japan, p. 1064; Mexico, p. 1090; Montenegro,
p. 1098; Netherlands, p. 1119; Nicaragua, p. 1142; Norway, p. 1152;
Peru, p. 1191; Portugal, p. 1201; Roumania, p. 1220; Russia, p.
1240; Serbia, p. 1281; Siam, p. 1288; Spain, p. 1300; Switzerland,
p. 1337; Salvador, p. 1270; Turkey, p. 1353." See also the recent Canadian conscription act,
entitled, "Military Service Act" of August 27, 1917, expressly
providing for service abroad (printed in the Congressional Record
of September 20, 1917, 55th Cong.Rec. p. 7959); the Conscription
Law of the Orange Free State, Law No. 10, 1899, Military Service
and Commando Law, sections 10 and 28, Laws of Orange River Colony,
1901, p. 855; of the South African Republic, "De Locale Wetten en
Volksraadsbesluiten der Zuid-Afr. Republick," 1898, Law No. 20, pp.
230, 233, article 6, 28; Constitution, German Empire, April 16,
1871, Art. 57, 59, Dodd, 1 Modern Constitutions, p. 344; Gesetz,
betreffend Aenderungen der Wehrpflicht, vom 11 Feb. 1888, No. 1767,
Reichs-Gesetzblatt, p. 11, amended by law of July 22, 1913, No.
4264, RGBI., p. 593; Loi sur le recrutement de l'armee of 15 July,
1889 (Duvergier, vol. 89, p. 440), modified by act of 21 March,
1905 (Duvergier, vol. 105, p. 133).

															[ Footnote 2 ]

															Military Service Act, January 27, 1916, 5 and 6 George V, c.
104, p. 367, amended by the Military Service Act of May 25, 1916,
2nd session, 6 and 7, George V, c. 15, p. 33.

															[ Footnote 3 ] See also Constitution of Vermont, 1777, c. 1, Art. 9
(Thorpe, vol. 6, pp. 4747, 3740); New York, 1777, Art. 40
( id., vol. 5, p. 2637); Massachusetts Bill of Rights,
1780, Art. 10 ( id., vol. 3, p. 1891); New Hampshire, 1784,
pt. 1, Bill of Rights, Art. 12 ( id., vol. 4, p. 2455);
Delaware, 1776, Art. 9 ( id., vol. 1, pp. 562, 564);
Maryland, 1776, Art. 33 ( id., vol. 3, pp. 1686, 1696);
Virginia, 1776, Militia ( id., vol. 7, p. 3817); Georgia,
1777, Art. 33, 35 ( id., vol. 2, pp. 777, 782).

															[ Footnote 4 ]

															Journals of Congress, Ford's ed., Library of Congress, vol. 7,
pp. 262, 263; vol. 10, pp. 199, 200; vol. 13, p. 299. 7 Sparks,
Writings of Washington, pp. 162, 167, 442, 444.

															[ Footnote 5 ]

															Act of May 9, 1794, c. 27, 1 Stat. 367; Act of February 28,
1795, c. 36, 1 Stat. 424; Act of June 24, 1797, c. 4, 1 Stat. 522;
Act of March 3, 1803, c. 32, 2 Stat. 241; Act of April 18, 1806, c.
32, 2 Stat. 383; Act of March 30, 1808, c. 39, 2 Stat. 478; Act of
April 10, 1812, c. 55, 2 Stat. 705.

															[ Footnote 6 ]

															Upton, Military Policy of the United States, pp. 99 ct seq.

															[ Footnote 7 ]

															Historical Report, Enrollment Branch, Provost Marshal General's
Bureau, March 17, 1866.

															[ Footnote 8 ] Slaughter House
Cases , 16 Wall. 36, 83 U. S. 72 -74, 83 U. S. 94 -95,
112-113; United States v. Cruikshank, 92 U. S.
542 , 92 U. S. 549 ; Boyd v. Thayer, 143 U. S. 135 , 143 U. S. 140 ; McPherson v. Blacker, 146 U. S. 1 , 146 U. S. 37 .


U.S. Supreme Court Hammer v. Dagenhart, 247
U.S. 251 (1918) Hammer v. Dagenhart No. 704 Argued April 15, 16,
1918 Decided June 3, 1918 247
U.S. 251 APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH
CAROLINA Syllabus The Act of September 1, 1916, c. 432, 39 Stat. 675, prohibits
transportation in interstate commerce of goods made at a factory in
which, within thirty days prior to their removal therefrom,
children under the age of 14 years have been employed or permitted
to work, or children between the ages of 14 and 16 years have been
employed or permitted to work more than eight hours in any day, or
more than six days in any week, or after the hour of 7 P.M. or
before the hour of 6 A.M. Held, unconstitutional as
exceeding the commerce power of Congress and invading the powers
reserved to the States.

															The power to regulate interstate commerce is the power to
prescribe the rule by which the commerce is to be governed; in
other words, to control the means by which it is carried on.

															The court has never sustained a right to exclude save in cases
where the character of the particular things excluded was such as
to bring them peculiarly within the governmental authority of the
State or Nation and render their exclusion, in effect, but a
regulation of interstate transportation, necessary to prevent the
accomplishment through that means of the evils inherent in
them.

															The manufacture of goods is not commerce, nor do the facts that
they are intended for, and are afterwards shipped in, interstate
commerce make their production a part of that commerce subject to
the control of Congress.

															The power to regulate interstate commerce was not intended as a
means of enabling Congress to equalize the economic conditions in
the States for the prevention of unfair competition among them by
forbidding the interstate transportation of goods made under
conditions which Congress deems productive of unfairness.

															It was not intended as an authority to Congress to control the
States in the exercise of their police power over local trade and
manufacture, always existing and expressly reserved to them by the
Tenth Amendment.

															Affirmed. Page 247 U. S. 252 The case is stated in the opinion. Page 247 U. S. 268 MR. JUSTICE DAY delivered the opinion of the court.

															A bill was filed in the United States District Court for the
Western District of North Carolina by a father in his own behalf
and as next friend of his two minor sons, one under the age of
fourteen years and the other between the ages of fourteen and
sixteen years, employees in a cotton mill at Charlotte, North
Carolina, to enjoin the enforcement of the act of Congress intended
to prevent interstate commerce in the products of child labor. Act
of Sept. 1, 1916, c. 432, 39 Stat. 675.

															The District Court held the act unconstitutional and entered a
decree enjoining its enforcement. This appeal brings the case here.
The first section of the act is in the margin. * Page 247 U. S. 269 Other sections of the act contain provisions for its enforcement
and prescribe penalties for its violation.

															The attack upon the act rests upon three propositions: first: it
is not a regulation of interstate and foreign commerce; second: it
contravenes the Tenth Amendment to the Constitution; third: it
conflicts with the Fifth Amendment to the Constitution.

															The controlling question for decision is: is it within the
authority of Congress in regulating commerce among the States to
prohibit the transportation in interstate commerce of manufactured
goods, the product of a factory in which, within thirty days prior
to their removal therefrom, children under the age of fourteen have
been employed or permitted to work, or children between the ages of
fourteen and sixteen years have been employed or permitted to work
more than eight hours in any day, or more than six days in any
week, or after the hour of seven 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 , 9 Wheat. 1, 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 Page 247 U. S. 270 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, 188 U. S. 321 , 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 Hoke
v. United States, 227 U. S. 308 ,
this court sustained the constitutionality of the so-called "White
Slave Traffic Act," whereby the transportation of a woman in
interstate commerce for the purpose of prostitution was forbidden.
In that case, we said, having reference to the authority of
Congress, under the regulatory power, to protect the channels of
interstate commerce:

															"If the facility of interstate transportation can be taken away
from the demoralization of lotteries, the debasement of obscene
literature, the contagion of diseased cattle or persons, the
impurity of food and drugs, the like facility can be taken away
from the systematic enticement to and the enslavement in
prostitution and debauchery of women, and, more insistently, of
girls. " Page 247 U. S. 271 In Caminetti v. United States, 242 U.
S. 470 , we held that Congress might prohibit the
transportation of women in interstate commerce for the purposes of
debauchery and kindred purposes. In Clark Distilling Co. v.
Western Maryland Ry. Co., 242 U. S. 311 , the
power of Congress over the transportation of intoxicating liquors
was sustained. In the course of the opinion, it was said:

															"The power conferred is to regulate, and the very terms of the
grant would seem to repel the contention that only prohibition of
movement in interstate commerce was embraced. And the cogency of
this is manifest, since, if the doctrine were applied to those
manifold and important subjects of interstate commerce as to which
Congress from the beginning has regulated, not prohibited, the
existence of government under the Constitution would be no longer
possible."

															And, 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 guarantees 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 Page 247 U. S. 272 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
interstate commerce transportation does not make their production
subject to federal control under the commerce power.

															Commerce

															"consists of intercourse and traffic, and includes the
transportation of persons land property, as well as the purchase,
sale and exchange of commodities."

															The making of goods and the mining of coal are not commerce, nor
does the fact that these things are to be afterwards shipped or
used in interstate commerce make their production a part thereof. Delaware, Lackawanna & Western R.R. Co. v. Yurkonis, 238 U. S. 439 .

															Over interstate transportation or its incidents, the regulatory
power of Congress is ample, but the production of articles intended
for interstate commerce is a matter of local regulation.

															"When the 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, nor by his preparation of it for
transportation, but by its actual delivery to a common carrier for
transportation, or the actual commencement of its transfer to
another state."

															(Mr. Justice Jackson in In re Green, 52 Fed.Rep. 113.)
This principle has been recognized often in this court. Coe v.
Errol, 116 U. S. 517 ; Bacon v. Illinois, 227 U. S. 504 , and
cases cited. If it were otherwise, all manufacture intended for
interstate shipment would be brought under federal control to the
practical exclusion of the authority of the States, a result
certainly not contemplated by the Page 247 U. S. 273 framers of the Constitution when they vested in Congress the
authority to regulate commerce among the States. Kidd v.
Pearson, 128 U. S. 1 , 128 U. S. 21 .

															It is further contended that the authority of Congress may be
exerted to control interstate commerce in the shipment of
child-made goods because of the effect of the circulation of such
goods in other States where the evil of this class of labor has
been recognized by local legislation, and the right to thus employ
child labor has been more rigorously restrained than in the State
of production. In other words, that the unfair competition thus
engendered may be controlled by closing the channels of interstate
commerce to manufacturers in those States where the local laws do
not meet what Congress deems to be the more just standard of other
States.

															There is no power vested in Congress to require the States to
exercise their police power so as to prevent possible unfair
competition. Many causes may cooperate to give one State, by reason
of local laws or conditions, an economic advantage over others. The
Commerce Clause was not intended to give to Congress a general
authority to equalize such conditions. In some of the States, laws
have been passed fixing minimum wages for women, in others, the
local law regulates the hours of labor of women in various
employments. Business done in such States may be at an economic
disadvantage when compared with States which have no such
regulations; surely, this fact does not give Congress the power to
deny transportation in interstate commerce to those who carry on
business where the hours of labor and the rate of compensation for
women have not been fixed by a standard in use in other States and
approved by Congress.

															The grant of power to Congress over the subject of interstate
commerce was to enable it to regulate such commerce, and not to
give it authority to control the Page 247 U. S. 274 States in their exercise of the police power over local trade
and manufacture.

															The grant of authority over a purely federal matter was not
intended to destroy the local power always existing and carefully
reserved to the States in the Tenth Amendment to the
Constitution.

															Police regulations relating to the internal trade and affairs of
the States have been uniformly recognized as within such control.
"This," said this court in United States v.
Dewitt , 9 Wall. 41, 76
U. S. 45 ,

															"has been so frequently declared by this court, results so
obviously from the terms of the Constitution, and has been so fully
explained and supported on former occasions that we think it
unnecessary to enter again upon the discussion." See Keller v. United States, 213 U.
S. 138 , 213 U. S. 144 , 213 U. S. 145 , 213 U. S. 146 .
Cooley's Constitutional Limitations, 7th ed., p. 11.

															In the judgment which established the broad power of Congress
over interstate commerce, Chief Justice Marshall said (9 Wheat. 22 U. S.
203 ):

															"They [inspection laws] act upon the subject before it becomes
an article of foreign commerce, or of commerce among the states,
and prepare it for that purpose. They form a portion of that
immense mass of legislation which embraces everything within the
territory of a state not surrendered to the general government, all
which can be most advantageously exercised by the states
themselves. Inspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal commerce
of a state and those which respect turnpike roads, ferries,
&c., are component parts of this mass."

															And in Dartmouth College v.
Woodward , 4 Wheat. 518, 17 U. S. 629 ,
the same great judge said:

															"That the framers of the constitution did not intend to restrain
the states in the regulation of their civil institutions, adopted
for internal government, and that Page 247 U. S. 275 the instrument they have given us is not to be so construed may
be admitted."

															That there should be limitations upon the right to employ
children in mines and factories in the interest of their own and
the public welfare, all will admit. That such employment is
generally deemed to require regulation is shown by the fact that
the brief of counsel states that every State in the Union has a law
upon the subject, limiting the right to thus employ children. In
North Carolina, the State wherein is located the factory in which
the employment was had in the present case, no child under twelve
years of age is permitted to work.

															It may be desirable that such laws be uniform, but our Federal
Government is one of enumerated powers; "this principle," declared
Chief Justice Marshall in McCulloch v.
Maryland , 4 Wheat. 316, "is universally
admitted."

															A statute must be judged by its natural and reasonable effect. Collins v. New Hampshire, 171 U. S.
30 , 171 U. S. 33 , 171 U. S. 34 .
The control by Congress over interstate commerce cannot authorize
the exercise of authority not entrusted to it by the Constitution. Pipe Line Cases, 234 U. S. 548 , 234 U. S. 560 .
The maintenance of the authority of the States over matters purely
local 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.

															In interpreting the Constitution, it must never be forgotten
that the Nation is made up of States to which are entrusted the
powers of local government. And to them and to the people the
powers not expressly delegated to the National Government are
reserved. Lane County v.
Oregon , 7 Wall. 71, 74 U. S. 76 . The
power of the States to regulate their purely internal affairs by
such laws as seem wise to the local authority is inherent, and has
never been surrendered to the general government. Page 247 U. S. 276 New York v.
Miln , 11 Pet. 102, 36 U. S. 139 ; Slaughter House
Cases , 16 Wall. 36, 83 U. S. 63 ; Kidd v. Pearson, supra. To sustain this statute would not
be, in our judgment, a recognition of the lawful exertion of
congressional authority over interstate commerce, but would
sanction an invasion by the federal power of the control of a
matter purely local in its character, and over which no authority
has been delegated to Congress in conferring the power to regulate
commerce among the States.

															We have neither authority nor disposition to question the
motives of Congress in enacting this legislation. The purposes
intended must be attained consistently with constitutional
limitations, and not by an invasion of the powers of the States.
This court has no more important function than that which devolves
upon it the obligation to preserve inviolate the constitutional
limitations upon the exercise of authority, federal and state, to
the end that each may continue to discharge, harmoniously with the
other, the duties entrusted to it by the Constitution.

															In our view, the necessary effect of this act is, by means of a
prohibition against the movement in interstate commerce of ordinary
commercial commodities, to regulate the hours of labor of children
in factories and mines within the States, a purely state authority.
Thus, the act in a two-fold sense is repugnant to the Constitution.
It not only transcends the authority delegated to Congress over
commerce, but also exerts a power as to a purely local matter to
which the federal authority does not extend. The far-reaching
result of upholding the act cannot be more plainly indicated than
by pointing out that, if Congress can thus regulate matters
entrusted to local authority by prohibition of the movement of
commodities in interstate commerce, all freedom of commerce will be
at an end, and the power of the States over local matters may be
eliminated, and, thus, our system of government be practically
destroyed. Page 247 U. S. 277 For these reasons, we hold that this law exceeds the
constitutional authority of Congress. It follows that the decree of
the District Court must be Affirmed. *

															"That no producer, manufacturer, or dealer shall ship or deliver
for shipment in interstate or foreign commerce any article or
commodity the product of any mine or quarry, situated in the United
States, in which within thirty days prior to the time of the
removal of such product therefrom children under the age of sixteen
years have been employed or permitted to work, or any article or
commodity the product of any mill, cannery, workshop, factory, or
manufacturing establishment, situated in the United States, in
which within thirty days prior to the removal of such product
therefrom children under the age of fourteen years have been
employed or permitted to work, or children between the ages of
fourteen years and sixteen years have been employed or permitted to
work more than eight hours in any day, or more than six days in any
week, or after the hour of seven o'clock postmeridian, or before
the hour of six o'clock antemeridian."

															MR. JUSTICE HOLMES, dissenting.

															The single question in this case is whether Congress has power
to prohibit the shipment in interstate or foreign commerce of any
product of a cotton mill situated in the United States in which,
within thirty days before the removal of the product, children
under fourteen have been employed or children between fourteen and
sixteen have been employed more than eight hours in a day, or more
than six days in any week, or between seven in the evening and six
in the morning. The objection urged against the power is that the
States have exclusive control over their methods of production, and
that Congress cannot meddle with them, and, taking the proposition
in the sense of direct intermeddling, I agree to it, and suppose
that no one denies it. But if an act is within the powers
specifically conferred upon Congress, it seems to me that it is not
made any less constitutional because of the indirect effects that
it may have, however obvious it may be that it will have those
effects, and that we are not at liberty upon such grounds to hold
it void.

															The first step in my argument is to make plain what no one is
likely to dispute -- that the statute in question is within the
power expressly given to Congress if considered only as to its
immediate effects, and that, if invalid, it is so only upon some
collateral ground. The statute confines itself to prohibiting the
carriage of certain goods in interstate or foreign commerce.
Congress is given power to regulate such commerce in unqualified
terms. It would not be argued today that the power to regulate does
not include the power to prohibit. Regulation means the prohibition
of something, and when interstate Page 247 U. S. 278 commerce is the matter to be regulated, I cannot doubt that the
regulation may prohibit any part of such commerce that Congress
sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law
is not beyond the regulative power of Congress merely because it
prohibits certain transportation out and out. Champion v.
Ames, 188 U. S. 321 , 188 U. S. 355 , 188 U. S. 359 , et seq. So I repeat that this statute, in its immediate
operation, is clearly within the Congress' constitutional
power.

															The question, then, is narrowed to whether the exercise of its
otherwise constitutional power by Congress can be pronounced
unconstitutional because of its possible reaction upon the conduct
of the States in a matter upon which I have admitted that they are
free from direct control. I should have thought that that matter
had been disposed of so fully as to leave no room for doubt. I
should have thought that the most conspicuous decisions of this
Court had made it clear that the power to regulate commerce and
other constitutional powers could not be cut down or qualified by
the fact that it might interfere with the carrying out of the
domestic policy of any State.

															The manufacture of oleomargarine is as much a matter of state
regulation as the manufacture of cotton cloth. Congress levied a
tax upon the compound when colored so as to resemble butter that
was so great as obviously to prohibit the manufacture and sale. In
a very elaborate discussion, the present Chief Justice excluded any
inquiry into the purpose of an act which, apart from that purpose,
was within the power of Congress. McCray v. United States, 195 U. S. 27 . As to
foreign commerce see Weber v. Freed, 239 U.
S. 325 , 239 U. S. 329 ; Brolan v. United States, 236 U. S. 216 , 236 U. S. 217 ; Buttfield v. Stranahan, 192 U. S. 470 .
Fifty years ago, a tax on state banks the obvious purpose and
actual effect of which was to drive them, or at least Page 247 U. S. 279 their circulation, out of existence was sustained although the
result was one that Congress had no constitutional power to
require. The Court made short work of the argument as to the
purpose of the act. "The judicial cannot prescribe to the
legislative department of the government limitations upon the
exercise of its acknowledged powers." Veazie
Bank v. Fenno , 8 Wall. 533. So it well might have
been argued that the corporation tax was intended, under the guise
of a revenue measure, to secure a control not otherwise belonging
to Congress, but the tax was sustained, and the objection, so far
as noticed, was disposed of by citing McCray v. United
States. Flint v. Stone Tracy Co., 220 U.
S. 107 . And to come to cases upon interstate commerce,
notwithstanding United States v. E. C. Knight Co., 156 U. S. 1 , the
Sherman Act has been made an instrument for the breaking up of
combinations in restraint of trade and monopolies, using the power
to regulate commerce as a foothold, but not proceeding because that
commerce was the end actually in mind. The objection that the
control of the States over production was interfered with was urged
again and again, but always in vain. Standard Oil Co. v. United
States, 221 U. S. 1 , 221 U. S. 68 , 221 U. S. 69 . United States v. American Tobacco Co., 221 U. S.
1 06, 221 U. S. 184 . Hoke v. United States, 227 U. S. 308 , 227 U. S. 321 , 227 U. S. 322 . See finally and especially Seven Cases of Eckman's Alterative
v. United States, 239 U. S. 510 , 239 U. S. 514 , 239 U. S. 515 .
The Pure Food and Drug Act which was sustained in Hipolite Egg
Co. v. United States, 220 U. S. 45 , with
the intimation that "no trade can be carried on between the States
to which it [the power of Congress to regulate commerce] does not
extend," 220 U. S. 57 ,
applies not merely to articles that the changing opinions of the
time condemn as intrinsically harmful, but to others innocent in
themselves, simply on the ground that the order for them was
induced by a preliminary fraud. Weeks v. United States, 245 U. S. 618 . It
does not matter whether the supposed Page 247 U. S. 280 evil precedes or follows the transportation. It is enough that,
in the opinion of Congress, the transportation encourages the evil.
I may add that, in the cases on the so-called White Slave Act, it
was established that the means adopted by Congress as convenient to
the exercise of its power might have the character of police
regulations. Hoke v. United States, 227 U.
S. 308 , 227 U. S. 323 . Caminetti v. United States, 242 U.
S. 470 , 242 U. S. 492 .
In Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311 , 242 U. S. 328 , Leisy v. Hardin, 135 U. S. 100 , 135 U. S. 108 ,
is quoted with seeming approval to the effect that

															"a subject matter which has been confided exclusively to
Congress by the Constitution is not within the jurisdiction of the
police power of the State unless placed there by congressional
action. I see no reason for that proposition not applying
here."

															The notion that prohibition is any less prohibition when applied
to things now thought evil I do not understand. But if there is any
matter upon which civilized countries have agreed -- far more
unanimously than they have with regard to intoxicants and some
other matters over which this country is now emotionally aroused --
it is the evil of premature and excessive child labor. I should
have thought that, if we were to introduce our own moral
conceptions where in my opinion they do not belong, this was
preeminently a case for upholding the exercise of all its powers by
the United States.

															But I had thought that the propriety of the exercise of a power
admitted to exist in some cases was for the consideration of
Congress alone, and that this Court always had disavowed the right
to intrude its judgment upon questions of policy or morals. It is
not for this Court to pronounce when prohibition is necessary to
regulation -- if it ever may be necessary -- to say that it is
permissible as against strong drink, but not as against the product
of ruined lives. Page 247 U. S. 281 The act does not meddle with anything belonging to the States.
They may regulate their internal affairs and their domestic
commerce as they like. But when they seek to send their products
across the state line, they are no longer within their rights. If
there were no Constitution and no Congress, their power to cross
the line would depend upon their neighbors. Under the Constitution,
such commerce belongs not to the States, but to Congress to
regulate. It may carry out its views of public policy whatever
indirect effect they may have upon the activities of the States.
Instead of being encountered by a prohibitive tariff at her
boundaries, the State encounters the public policy of the United
States, which it is for Congress to express. The public policy of
the United States is shaped with a view to the benefit of the
nation as a whole. If, as has been the case within the memory of
men still living, a State should take a different view of the
propriety of sustaining a lottery from that which generally
prevails, I cannot believe that the fact would require a different
decision from that reached in Champion v. Ames. Yet, in
that case, it would be said with quite as much force as in this
that Congress was attempting to intermeddle with the State's
domestic affairs. The national welfare, as understood by Congress,
may require a different attitude within its sphere from that of
some self-seeking State. It seems to me entirely constitutional for
Congress to enforce its understanding by all the means at its
command.

															MR. JUSTICE McKENNA MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE
concur in this opinion.