The Supreme Court and Interstate Barriers

• Author: Robert H. Jackson
• Published date: 01 January 1940
• Date: 01 January 1940
• DOI: http://doi.org/10.1177/000271624020700110
• publishedBy: Sage Publications, Inc.

70

The

Supreme

Court

and

Interstate

Barriers

By

ROBERT

H.

JACKSON

The

oppressed

and

degraded

state

of

commerce,

previous

to

the

adoption

of

the

constitution,

can

scarcely

be

forgotten....

Those

who

felt

the

injury

arising

from

this

state

of

things,

and

those

who

were

capable

of

estimating

the

in-

fluence

of

commerce

on

the

pros-

perity

of

nations,

perceived

the

necessity

of

giving

control

over

this

important

subject

to

a

single

government.

It

may

be

doubted,

whether

any

of

the

evils

proceed-

ing

from

the

feebleness

of the

federal

government,

contributed

more

to

that

great

revolution

which

introduced

the

present

sys-

tem,

than

the

deep

and

general

conviction,

that

commerce

ought

to

be

regulated

by

congress.’

THE

history

of

the

times

which

im-

mediately

preceded

the

Constitu-

tional

Convention

abundantly

justifies

the

opinion

thus

expressed

by

Chief

Justice

Marshall.

The

Revolutionary

War

was

followed

by

an

economic

break-

down

and

an

accompanying

commercial

war

between

the

states.

Beginning

in

1784

protective

tariffs

were

erected

by

New

England

and

most

of

the

Middle

states.

Connecticut

levied

discrimina-

tory

duties

on

goods

from

Massachu-

setts,

and

Pennsylvania

discriminated

against

Delaware.

Tribute

was

exacted

from

the

coasting

trade,

notably

by

New

York,

through

the

imposition

of

clear-

ance

fees.

Even

market

boats

from

New

Jersey,

carrying

butter

and

cheese

and

garden

vegetables,

were

subject

to

en-

trance

fees

when

rowed

across

from

Paulus

Hook

to

Cortlandt

Street.

Mad-

ison

drew

a

classic

picture

of

&dquo;New

Jer-

sey,

placed

between

Philadelphia

and

New

York,

...

likened

to

a

cask

tapped

at

both

ends;

and

North

Carolina,

be-

tween

Virginia

and

South

Carolina,

to

a

patient

bleeding

at

both

arms.&dquo;

Dis-

crimination

was

followed

by

retaliation,

and

the

meetings

and

resolves

of

embit-

tered

merchants

bore

an

ominous

re-

semblance

to

those

which

in

1775

had

prepared

the

way

for

revolution.2

2

On

the

anvil

of

this

experience

the

Constitutional

Convention

of

1787

ham-

mered

out

one

of

the

great

implements

of

federal

power.3

3

Article

I,

Section

8,

paragraph

3

of

the

Constitution

pro-

vides :

&dquo;The

Congress

shall

have

Power

... to

regulate

Commerce

with

foreign

Nations,

and

among

the

several

States,

and

with

the

Indian

Tribes.&dquo;

DIFFICULTY

IN

APPLICATION

These

concise

words

have

been

a

source

of

almost

continuous

litigation

and

vexation

for

the

Supreme

Court.

The

clause

has

been

the

focus

of

many

of

the

most

important

conflicts

between

federal

power and

states’

rights.

It

forms

the

warp

into

which

theoreticians

have

woven

strange

designs

of

laissez

faire

and

patterns

to

separate

acts

of

commerce

from

antecedents

such

as

pro-

duction

or

mining

and

from

subsequent

acts

such

as

distribution.

Its

applica-

tion

has

always

been

difficult

and

its

breadth

not

always

consistently

under-

stood.

Marshall

described

it

as

a

&dquo;sov-

ereign&dquo;

power,

&dquo;complete

in

itself.&dquo;

This

majestic

concept

was

narrowed

un-

til

in

1918

in

the

Child

Labor

case

4 the

majority

found

it

a

puny

power

indeed.

Now

we

are

returning

to

its

authentic

1

Brown

v.

Maryland,

12

Wheat.

419,

445-

446.

2

See

Fiske,

The

Critical

Period

in

American

History,

Chap.

IV;

Story,

On

the

Constitution,

Secs.

259-61.

3

See

The

Federalist,

No.

XLII ;

5

Elliot,

Debates,

Introduction

by

Madison,

pp.

109-22.

4

Hammer

v.

Dagenhart,

247

U.

S.

251.