Foreign Commerce: Banned Articles.

The forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. Congress has exercised this power since 1842, when it forbade the importation of obscene literature or pictures from abroad.854 Six years, later it passed an act “to prevent the importation of spurious and adulterated drugs” and to provide a system of inspection to make the prohibition effective.855 Such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. In 1887, the importation by Chinese nationals of opium was prohibited,856 and subsequent statutes passed in 1909 and 1914 made it unlawful for anyone to import it.857 In 1897, Congress forbade the importation of any tea “inferior in purity, quality, and fitness for consumption” as compared with a legal standard.858 The Act was sustained in 1904, in Buttfield v. Stranahan.859 In “The Abby Dodge” an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained but construed as not applying to sponges taken from the territorial water of a state.860

In Weber v. Freed,861 the Court upheld an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights. Chief Justice White grounded his opinion for a unanimous Court on the complete and total control over foreign commerce possessed by Congress, in contrast implicitly to its lesser power over interstate commerce.862 And, in Brolan v. United States,863 the Court rejected as wholly inappropriate citation of cases dealing with interstate commerce on the question of Congress’s power to prohibit foreign commerce. It has been earlier noted, however, that the purported distinction is one that the Court both previously to and subsequent to these opinions has rejected.


Ch. 270, § 28, 5 Stat. 566. back
9 Stat. 237 (1848). back
24 Stat. 409. back
35 Stat. 614; 38 Stat. 275. back
29 Stat. 605. back
192 U.S. 470 (1904). back
223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947). back
239 U.S. 325 (1915). back
239 U.S. at 329. back
236 U.S. 216 (1915). back