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Before we adjourn I wish to say that a memorandum on the constitutionality of the Black bill to ban from interstate commerce com. modities on which more than 30 hours per week have been expended in labor, which bill is similar to the Connery bill, has been submitted for inclusion in the record. This memorandum was requested by the subcommittee of the Committee on the Judiciary of the Senate, which is holding hearings on that bill. The memorandum was prepared by Mr. Herman Aaron, January 18, 1933, and, without objection, it will be received.

The memorandum reads as follows:



Objection is made that the bill invades the police power of the several States which is reserved to them exclusively under the Constitution. The power to regulate interstate commerce is expressly conferred upon the Federal Government by the Constitution. It follows, therefore, that any rights reserved to the respective States are subject to the exercise of the power by Congress of the regulation of interstate commerce. In exercising such power must Congress confine itself solely to a regard for the physical movement of freight, or may its regulations be based upon moral and general welfare considerations?

It is now too late for anyone to contend that Congress may not rely upon moral and general welfare considerations as the basis for its regulation of interstate commerce. The antilottery law, the pure food and drug law, and the so-called white slave law and other statutes that may be cited have thoroughly established a rule of law which forbids any such narrow claim. A lot. tery ticket viewed merely with relation to the act of physical movement in interstate commerce is not different from a theater ticket or a railroad ticket, or a leaflet from the Congressional Record. Congressional action barring it from interstate commerce has, however, been sustained by the Supreme Court solely upon the ground of the effect of the lottery business upon the morals and general welfare of the Nation. Anyone will admit that Congress bas no power to forbid the use of lotteries within the confines of the respective States. Any such action is reserved to the police power of the States.

So with respect to the Black bill, Congress has, of course, no power to regulate the hours of labor within the respective States. Viewing excessive hours of labor, however, as a vital menace to the public welfare, Congress has in reason and on established principles the same right to consider that evil in its regulation of interstate commerce as it has to consider the lottery evil. As a matter of fact, the evil of overproduction is infinitely greater than any evils inherent in the purchase of lottery tickets. A man who buys a lottery ticket may lose a little money and perhaps acquire a habit of taking chances. If Congress takes our view, as it has the right to do, then one who engages in overproduction is dooming the Nation to privation, want, and misery, destroying our industrial system, and threatening the stability of the Government itself.

Viewed from the standpoint of mere physical movement of freight, there is no difference between the shipment of a carton of food that is misbranded and one that is not. And so with respect to the carriage of a woman from one State to another, whether at the end of her journey she devotes herself to immoral practices or not. Congress has no power to ordain pure-food regulations within the limits of the respective States, nor to proscribe prostitution within such limits. When it comes to exercise its power to regulate interstate commerce it may, however, adopt as the basis for its regulation the moral and general welfare considerations. If there be in reason or on principle any merit in the claim that the Black bill is unconstitutional because Congress invades the police power reserved to the States, then it must follow that the antilottery bill and the laws preventing the movement across State lines of misbranded foods and drugs and of women for immoral purposes are unconstitutional.

Congress being invested with the authority to regulate interstate commerce and knowing the destructive evils of overproduction caused by excessive hours of labor would, if it failed to exercise its power to check such evil, be aiding and abetting it. I am not unmindful of the case of Hammer v. Dagenhart (247 U. S. 251), decided by a 5 to 4 vote. I do not think, however, that that case will survive a reconsideration in the light of our experience during the past three years and the blighting effects of the evils which the Black bill is directed to discourage and which has brought on a crisis in the affairs of the Nation.

I quote the dissenting opinion of Mr. Justice Holmes in Hammer v. Dagenhart, which has never been successfully answered, and would suggest that it be pressed upon the attention of the court if and when the Black bill should come under judicial review.

At page 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 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 can not 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. RAMSPECK. I move that we now adjourn.

The CHAIRMAN. The committee stands adjourned, to meet at 10 o'clock to-morrow morning.

(Thereupon, at 11.55 o'clock a. m. Tuesday, January 24, 1933, the committee adjourned, to meet to-morrow morning at 10 o'clock.)






Washington, D.C. The committee this day met at 10 o'clock a. m., Hon. William P. Connery, jr., chairman, presiding, for further consideration of H. R. 14105.



The CHAIRMAN. The committee will please come to order, and we will hear Mr. Emery this morning.

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