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,874 involving the act of 1895 “for the suppression of lotteries.”875 An earlier act excluding lottery tickets from the mails had been upheld in the case In re Rapier,876 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 National Government, and the right to engage in foreign and interstate 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’s 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,877 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,878 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.”879 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 devise 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.”880

In Brooks v. United States,881 the Court sustained the National Motor Vehicle Theft Act882 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.883

Footnotes

874
Lottery Case (Champion v. Ames), 188 U.S. 321 (1903). [Back to text]
875
28 Stat. 963. [Back to text]
876
143 U.S. 110 (1892). [Back to text]
877
22 U.S. (9 Wheat.) 1, 227 (1824). [Back to text]
878
114 U.S. 622, 630 (1885). [Back to text]
879
Hoke v. United States, 227 U.S. 308, 322 (1913). [Back to text]
880
United States v. Hill, 248 U.S. 420, 425 (1919). [Back to text]
881
267 U.S. 432 (1925). [Back to text]
882
41 Stat. 324 (1919), 18 U.S.C., §§ 2311–2313. [Back to text]
883
267 U.S. at 436–39. See also Kentucky Whip & Collar Co. v. Ill. Cent. R.R., 299 U.S. 334 (1937). [Back to text]