CRS Annotated Constitution

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The Lottery Case.—The first case to come before the Court in which the issues discussed above were canvassed at all thoroughly was Champion v. Ames,789 involving the act of 1895 “for the suppression of lotteries.”790 An earlier act excluding lottery tickets from the mails had been upheld in the case of In re Rapier,791 on the proposition that Congress clearly had the power to see that the very facilities furnished by it were not put to bad use. But in the case of commerce, the facilities are not ordinarily furnished by the[p.201]National Government, and the right to engage in foreign and interestate commerce comes from the Constitution itself or is anterior to it.

How difficult the Court found the question produced by the act of 1895, forbidding any person to bring within the United States or to cause to be “carried from one State to another” any lottery ticket, or an equivalent thereof, “for the purpose of disposing of the same,” was shown by the fact that the case was argued three times before the Court and the fact that the Court’s decision finally sustaining the act was a five–to–four decision. The opinion of the Court, on the other hand, prepared by Justice Harlan, marked an almost unqualified triumph at the time for the view that Congress’ power to regulate commerce among the States included the power to prohibit it, especially to supplement and support state legislation enacted under the police power. Early in the opinion, extensive quotation is made from Chief Justice Marshall’s opinion in Gibbons v. Ogden,792 with special stress upon the definition there given of the phrase “to regulate.” Justice Johnson’s assertion on the same occasion is also given: “The power of a sovereign State over commerce, . . . amounts to nothing more than a power to limit and restrain it at pleasure.” Further along is quoted with evident approval Justice Bradley’s statement in Brown v. Houston,793 that “[t]he power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.”

Following the wake of the Lottery Case, Congress repeatedly brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the States in the exercise of their reserved powers, thereby aiding them in the repression of a variety of acts and deeds objectionable to public morality. The conception of the Federal System on which the Court based its validation of this legislation was stated by it in 1913 in sustaining the Mann “White Slave” Act in the following words: “Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction . . . but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral.”794 At the same time, the Court made it plain that in prohibiting commerce among the States, Congress was equally free to support state legislative policy or to de[p.202]vise a policy of its own. “Congress,” it said, “may exercise this authority in aid of the policy of the State, if it sees fit to do so. It is equally clear that the policy of Congress acting independently of the States may induce legislation without reference to the particular policy or law of any given State. Acting within the authority conferred by the Constitution it is for Congress to determine what legislation will attain its purpose. The control of Congress over interstate commerce is not to be limited by State laws.”795

In Brooks v. United States,796 the Court sustained the National Motor Vehicle Theft Act797 as a measure protective of owners of automobiles; that is, of interests in “the State of origin.” The statute was designed to repress automobile motor thefts, notwithstanding that such thefts antedate the interstate transportation of the article stolen. Speaking for the Court, Chief Justice Taft, at the outset, stated the general proposition that “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin.” Noting “the radical change in transportation” brought about by the automobile, and the rise of “[e]laborately organized conspiracies for the theft of automobiles . . . and their sale or other disposition” in another jurisdiction from the owner’s, the Court concluded that such activity “is a gross misuse of interstate commerce. Congress may properly punish such interstate transportation by anyone with knowledge of the theft, because of its harmful result and its defeat of the property rights of those whose machines against their will are taken into other jurisdictions.” The fact that stolen vehicles were “harmless” and did not spread harm to persons in other States on this occasion was not deemed to present any obstacle to the exercise of the regulatory power of Congress.798

The Darby Case.—In sustaining the Fair Labor Standards Act799 in 1941,800 the Court expressly overruled Hammer v. Dagenhart.801 “The distinction on which the [latter case] . . . was rested that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property— a distinction which was novel when made and[p.203]unsupported by any provision of the Constitution—has long since been abandoned. . . . The thesis of the opinion that the motive of the prohibition or its effect to control in some measure the use or production within the States of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. . . . The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, was a precedent, as it then had has long since been exhausted. It should be and now is overruled.”802


789 Lottery Case (Champion v. Ames), 188 U.S. 321 (1903).
790 28 Stat. 963 .
791 143 U.S. 110 (1892).
792 9 Wheat. (22 U.S.) 1, 227 (1824).
793 114 U.S. 622, 630 (1885).
794 Hoke v. United States, 227 U.S. 308, 322 (1913).
795 United States v. Hill, 248 U.S. 420, 425 (1919).
796 267 U.S. 432 (1925).
797 41 Stat. 324 (1919), 18 U.S.C., §§ 2311–2313.
798 Id., 436–439. See also Kentucky Whip & Collar Co. v. I.C.R. Co., 299 U.S. 334 (1937).
799 29 U.S.C. §§ 201 –219.
800 United States v. Darby, 312 U.S. 100 (1941).
801 247 U.S. 251 (1918).
802 Id., 312 U.S., 116–117.
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