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subject matter, fall into the same general class, because they propose that the government shall do something not done by anybody at present, or at least not done efficiently. Such for instance are the protection of Niagara Falls-in which the Federal power over boundaries is invoked-the preservation of the Great Lake fisheries by international agreement, and Commissioner Sargent's much-discussed scheme for deflecting the stream of immigrants to those sections of the country where they are wanted.
Next may be classed the proposals which are urged on the ground that the Federal Government should step in merely to give the several states a chance to regulate their own affairs. These, for the most part, grow out of changed conditions. Centers of production and consumption have come to be so far apart, transportation so easy, and travelling so incessant, that local regulations, once amply sufficient, have been found in many lines, to be little better than farcical. The Pure Food bill owes much of its backing to the fact that a State with good food laws is now at the mercy of one with bad laws or none, which can flood it with impure products; the prohibition communities never cease asking for congressional action that will undo the "original package" decisions and help the State authorities to stop liquor in transit the moment it crosses the line.
Finally should be mentioned those instances in which national action is urged chiefly to secure uniformity of system in some department. The practical restriction of naturalization to the Federal Courts, is one example, and another the partly completed extension of national trade-mark legislation, while the national child-labor law, strongly pushed by a state labor commissioner recently, though without citation of the constitutional provision which would authorize it, is a type of the many benevolent measures so advocated.
Efficiency has come to be the controlling argument in most of these cases. Our National Government has a way of getting things done-not economically, perhaps, but effectively that the States simply stand by and envy. The
illicit liquor-seller who defies the sheriff and the Chief of Police, would not dare to run for a week without paying his Federal tax. The present advocacy of Federal control as a general panacea is really not so much an indication of changing Constitutional views, as a tribute to the relatively effective way in which power is applied from Washington.
16. THE CONSTITUTION AND THE NEW FEDERALISM.
That this extension of the powers of the central government is in violation of the true spirit of the Constitution and is dangerous to republican institutions is the belief of many writers upon this subject. Professor Henry Wade Rogers gives clear expression to this view in the following article: .
The founders of the Republic established the Constitution upon the fundamental principles of the absolute autonomy of the States, except in respect to the interests common to the entire country. They realized to the full extent that upon no other principle would it be possible to maintain a republican government over a country even as large as ours then was.
Once the question was whether the States would destroy the National Government. Now the question seems to be whether the National Government shall be permitted to destroy the States. It was the fear that that question might sometime arise which led Samuel Adams and John Hancock in Massachusetts, George Clinton in New York, and Patrick Henry in Virginia to withhold for so long their assent to the ratification of the Constitution. But, under the Constitution, the States are as indestructible as the Union. The Constitution looks to an indestructible Union composed of indestructible States. Actual abolition of the States is impossible. There are, however, forces in operation which seek to reduce the States to administrative departments like those of France. There is an increasing tendency to regard a State as a mere geographical expression, rather than a political division of the country. There ought to be, in
every part of our country, not only a revival of knowledge of the Constitution, but a careful study and weighing of the opinions of the Fathers as they found expression in the debates in the Convention which framed the Constitution, and in the Conventions in the several States which ratified that instrument.
There is a constitutional and wholesome doctrine of State rights the maintenance of which is of the utmost importance to the continued welfare of the Republic. In the name of State rights certain extreme and disorganizing views were at one time promulgated, which the country received with disfavor. In our day, nullification is recognized as folly and secession as a crime. But it has been said that, because this folly and this crime were committed in the name of the State rights it would be folly to infer that the name may not have a good meaning and represent a useful thing.
If the Government is to endure, the people must steadfastly maintain two essential and fundamental principles; the first is, that the National Government possesses all the powers granted to it in the Constitution either expressly or by necessary implication; and the second is, that the States possess all governmental powers not granted to the General Government or reserved to the people.
We are threatened with a revival of Federalism-Federalism that is more extreme and radical than the leaders of the old Federal party ever countenanced. The argument proceeds on the assumption that the States have failed to perform their duty properly, so that great evils have grown up which the States cannot or will not remedy, and from which we should have been free if only the Federal Government had possessed the authority and not the States.
That the evils exist is conceded. That the States have not done their full duty is also conceded. But that the Federal Government would have done better is a mere assumption, and one I am not prepared to accept. Congress has now in the Territories and District of Columbia all the powers which the State Governments possess; yet the legislation respecting
the corporations which Congress has enacted has not been better than the legislation of the States on the same subject. The laws of Congress have not secured publicity of accounts, nor prevented over-capitalization and stock-watering, and an adequate system of inspection has not been established over Federal corporations. The Union Pacific Railroad with which Congress has been concerned, had, upon its reorganization in 1897, a share capital of $136,000,000, which at market price was worth only $54,000,000, showing an estimated overcapitalization of $81,330,000. Congress has provided for the examination of National Banks. But the inspection of National Banks is not superior to the system which Massachusetts has established for the inspection of its State banks. The laws of Massachusetts regulating insurance companies is as good as, and in some respects better than, that which the advocates of a Federal law endeavored to get Congress to enact a year or two ago. And about the same time the President was declaring in messages to Congress that the States were incompetent to deal with the problem of insurance the State of New York, under the guidance of its present Governor, enacted an admirable piece of legislation, superior to that which a president of a New Jersey insurance company, himself a Senator, was seeking to impose upon Congress, under the fallacious assumption that insurance was interstate commerce, the Supreme Court of the United States to the contrary notwithstanding. During the present year, the same State, under the direction of the same Governor, has enacted a Public Utilities law which, as a piece of constructive legislation intended to curb the public service corporations, is in advance of anything which has come from Congress respecting the corporations it has created, or over which it has control as the legislature for the Territories or the District of Columbia.
The tendency to take their domestic affairs from the control of the State is shown by the agitation in favor of a national incorporation law. It is assumed that the power to regulate commerce includes the right to regulate the corpora
But if, under its power
tion which is engaged in commerce. to regulate commerce, Congress can assume control over all corporations which engage in interstate commerce, it is difficult to see why it has not an equal right to assume a like control over all partnerships that do any interstate business, as well as over all individuals whose business is of a similar nature. In this way Congress can take to itself jurisdiction over a very large part of the business of the country, withdrawing from the control of the States what has always been supposed to be within their peculiar province, and working a fundamental change in the character of the Government itself. It may be very seriously questioned whether the mere fact that a corporation or a partnership is engaged in interstate commerce affords any sound legal reason for assuming that Congress has the right to exercise an exclusive jurisdiction over every such corporation and partnership or individual who engages in interstate commerce, even though the interstate commerce may be but a part of the business of such corporation or partnership, as they may be likewise engaged in intrastate commerce. So that if the regulation of corporations is a regulation of interstate commerce it may be a regulation of intrastate commerce as well.
If Congress has jurisdiction over every corporation which to any extent engages in interstate commerce, what is there to prevent Congress from declaring that the vast properties which these corporations control shall not be taxed by the State Governments without the consent of Congress? The States cannot tax National Banks except to the extent authorized by the national banking laws. If all corporations engaged in interstate commerce are to be compelled to incorporate under a national incorporation law, why may not Congress prohibit the States from taxing such corporation or the properties which they own? It is nothing to the purpose to say that Congress would never exercise the power. The fact that it could exercise the power, and might sometime do so to a greater or less extent, is one not lightly to be lost sight of, as these corporations own a very large por