regulatory powers would be held destructive of the rights reserved to the States. (Employers' Liability cases, 207 U. S. 463), in which case Chief Justice White stated:

It is apparent that if the contention were well-founded, it would extend the power of Congress to every conceivable subject, howver inherently local; would obliterate all of the limitations of power imposed by the Constitution, and would destroy the authority of the States as to all conceivable matters, which from the beginning have been, and must continue to be, under their control so long as the Constitution endures.

See also Kidd v. Pearson, 128 U. S. 1, 21; Keller v. U. S., 213 U. S. 138, 148; Hill v. Wallace, 259 U. S. 44, 67. The announced decision in Schecter v. U. S., 295 U. S. 495 at 546 adheres to this rule, when the Court said:

If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the Federal authority would embrace practically all of the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.

The tenth amendment positively blocks any interpretation of the commerce clause that would give the Congress arbitrary power to close the channels of interstate commerce, and to condition their use upon compliance with Federal regulation of labor conditions. Recently, in the press, in connection with pending measures in Congress, a statement made in 1913 by the late Justice Holmes, in a speech entitled "The Law and the Court" has been quoted. That statement is: While the Union would be imperiled if the Court could not declare the State laws unconstitutional, he did not believe that the United States would come to an end if the Court lost its power to declare an act of Congress void. Chief Justice Hughes, in a series of lectures, delivered in 1927, now printed in a book entitled "The Supreme Court of the United States", commencing at page 95, made the following comment regarding this statement of Justice Holmes. After quoting the statement, Chief Justice Hughes (who was not at that time a member of the Supreme Court), said:

Such observations undoubtedly have derived support from the infrequency, during a long period of decisions holding acts of Congress to be invalid, and from the fact that few of these cases have been of great importance in shaping the course of the Nation. But the suggestion fails, as it seems to me, to take adequate account of considerations which ought not to be lightly dismissed. The dual system of Government implies the maintenance of the constitutional restrictions of the powers of Congress as well as of those of the States. The existence of the function of the Supreme Court is a constant monition to Congress. A judicial, as distinguished from a mere political, solution of the questions arising from time to time has its advantages in a more philosophical and uniform exposition of constitutional principles than would otherwise be probable. Moreover, the expansion of the country has vastly increased the volume of legislative measures and there is severe pressure toward an undue centralization. In Congress, theories of State autonomy, strongly held so far as profession goes, may easily yield to the demands of interests seeking Federal support. Many of our citizens in their zeal for particular measures have little regard for any of the limitations of Federal authority. We have entered upon an era of regulation with a great variety of legislative proposals, constantly multiplying governmental contacts with the activities of industry and trade. These proposals raise more frequently than in the past questions of National, as opposed to State, power. If our dual system with its recognition of local authority in local concerns is worth maintaining, judicial review is likely to be of increasing value. The Bill of Rights in the Federal Constitution, sustained by the judicial power, must still be regarded as of importance to the liberty of the citizen.

This bill prescribes most drastic regulations for intrastate activities, as well as interstate activities, and then seeks to compel compliance by closing the channels of commerce and the mails and, therefore, shows on its face that it is not a regulation of commerce, but is an attempt to try to do indirectly what Congress cannot do directly. This appears on the face of the bill and the Supreme Court would consider the congressional motive back of the statute and declare it unconstitutional, even though Congress had the unquestioned power to close the channels of commerce, which it has not. It is merely another case where the Court would hold that Congress cannot use its powers, even those it admittedly has, to accomplish indirectly a result beyond its power, when its purpose to that effect appears upon the face of the act. (Child Labor Tax case, 259 U. S. 20.) In that case, Congress had unquestioned power to tax, yet it appeared on the face of the act that the real motive was to regulate child labor, a subject beyond the Federal jurisdiction. This same rule, as regards the use of the taxing power, applies with equal force to the commerce power. (Hill v. Wallace, supra.)

Closing of mails: This bill cannot be sustained under the congressional power to close the mails. The precise limitations of the congressional power to close the mails has not been established. No Federal statute closing the mails to any type of matter has ever been held unconstitutional, but the power of Congress on this point has never been severely tested. As in the case of interstate commerce, Congress may exclude from the mails matters that are inherently harmful, such as the closing of the mails to lottery tickets, schemes to defraud, and so forth. But Congress has never attempted to close the mails for the purpose, as in this bill, to regulate activities beyond its jurisdiction, such as the manufacturing of goods. The postal power is limited by the Bill of Rights, just as is the commerce power (Burton v. U. S., 202 U. S. 344, 371). And, like the commerce power, the tenth amendment prohibits any interpretation of the postal power that would enable Congress to close the mails at will, or to permit their use only upon compliance with Federal regulation. Otherwise, every feature of modern business life could be brought under Federal control. All of the arguments advaced by the Court with regard to the commerce power apply with even greater force to the postal power.

Power of Congress to regulate intrastate commerce which directly affects interstate commerce.

Notwithstanding the fact that the Supreme Court has consistently drawn, for more than 100 years, a clear line of demarcation between intra- and inter-state commerce, and, as far as the purpose of this bill is concerned, clearly defined what constitutes affecting interstate commerce to the degree necessary to make it a part thereof, the night after the Schechter decision was rendered, General Johnson stated, over the radio, that Congress could pass a law preserving the objectives of the N. R. A., as far as interstate commerce was concerned, which would not be condemned by the reasoning in the Schechter decision. His theory, as then announced, was this. As appeared in the Schechter case, the chickens were shipped to Brooklyn across State lines, dressed, and sold locally, that is, within the State of New York. Therefore, the decision had no application to a case where raw materials were assembled at a plant and the finished goods were intended to be sold

or actually sold later in interstate commerce, that is, transported across the State lines. In other words, such a theory would determine the character of intra- or inter-state commerce according to the intent of the manufacturer as regards his contemplated disposition of the goods, or what he actually did with them after they were made. This, likewise, was the announced philosophy of the Wagner bill and has been urged as a reason why this Ellenbogen bill might be sustained. It is not necessary to go into that theory in detail because it is archaic and has been exploded by the Supreme Court in Coe v. Errol, 116 U. S. 517, 525. In this case, the Court said:

No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce. Manufacture is transformation-the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce, and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. * * *If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufacturers, but also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest or the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform and vital interests-interests which in their nature are and must be local in all details of their successful management. The demands of such a supervision would require, not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent. Any movement toward the establishment of rule of production in this vast country, with its many different climates and opportunities, could only be at the sacrifice of the peculiar advantage of a large part of the localities in it, if not of every one of them. On the other hand, any movement toward the local, detailed and incongruous legislation required by such interpretation would be about the widest possible departure from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for, Congress would be confined to the regulation, not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite, as we have seen; but still there would always remain the possibility, and often it would be the case, that the producer contemplated a domestic market. In that case the supervisory power must be executed by the State; and the interminable trouble would be presented, that whether the one power or the other should exercise the authority in question would be determined, not by any general or intelligible rule, but by the secret and changeable intention of the producer in each and every act of production. A situation more paralyzing to the State governments, and more provocative of conflicts between the General Government and the States, and less likely to have been what the framers of the Constitution intended, it would be difficult to imagine.

The Supreme Court has said that errors in construing the meaning of the commerce clause have resulted from not observing the difference between the regulating power of Congress over contracts and negotiations for sales of goods to be delivered across State lines, and that over the merchandise, the subject of such sales and negotiations; that the goods are not within the control of Congress until they are in actual transit from one State to another. The manufacture of goods to be shipped without the State is not interstate commerce (Danville

Local Union v. Danville Brick Company, 283 Fed. 909). Coal mining and the manufacture of goods is not interstate commerce, even though the material or goods may be shipped from one State to another. Interruption of coal mining is not interruption of interstate commerce (United Mine Workers v. Coronado Coal Co., 259 U. S. 344).

Congress has no power to regulate the manufacture of goods (United Leather Works International Union v. Herkert et al., 265 U. S. 457), even though they are to be shipped in interstate commerce, or to fix the wages of intrastate labor even if the effect of such wages on interstate commerce can be shown (Schechter case, supra). Obviously, any other rule would mean complete centralization in the Congress of all governmental power because there are very few commercial activities which do not affect interstate commerce at least indirectly. This bill does not present a case where a wholly intrastate activity directly affects interstate commerce.

There are two cases which have been cited as being in support of the constitutionality of this bill and legislation involving similar constitutional questions. These cases are: Chicago Board of Trade v. Olsen (262 U. S. 1); Stafford v. Wallace (258 U. S. 495).

In the Chicago Board of Trade case, the Grain Futures Act prescribed Federal regulations for dealing in grain futures on boards of trade. The act was held constitutional on the ground that the prices in grain futures were subject to artificial manipulation and, when done on a board so important as the Chicago Board, affected Nation-wide prices and the moving of grain in interstate commerce, and was held to affect directly interstate commerce. It is from these cases the phrase "continuous current or stream" was obtained-the court using that expression to explain how the grain moved through Chicago from the West to eastern markets and was merely stopped in Chicago temporarily for inspection, weighing the sale, which was not sufficient to remove it from the current or stream of interstate

commerce.

In Stafford v. Wallace, the Federal statute regulated the charges for services and facilities in the Chicago Stock Yards in connection with cattle passing through. Again, the stock yards were not a place of final destination and consequently, the regulations were regarded as applying to a continuous current of interstate commerce. Therefore, the handling of the cattle in the yards not only directly affected interstate commerce, but was a part and incident of it.

The Supreme Court has repeatedly had its attention called to these two cases and has declined to follow the specious reasoning and logic so as to extend any of the implications of those decisions to the actual manufacturing of goods. In the realm of constitutional law differences of degree are determinative and the Court has definitely decided that the regulatory powers of Congress over commerce cannot be extended to include manufacturing, for the numerous reasons already mentioned.

The provisions of this bill do not cover matters which have such relation to interstate commerce as to become a part of it, and, consequently, the bill will most certainly be condemned by the Court and not supported, regardless of any claimed social desirability.

It is unnecessary to discuss specifically the many other provisions of the bill, because the underlying principles involved in each instance are the same as those already discussed.

Collective bargaining: For example, the essential ingredients of the National Labor Relations Act are duplicated in this bill. The philosophy relating to collective bargaining is that denial of the right to organize and bargain collectively through the representatives of the majority of the employees may lead to a strike, which might result in the cessation of the manufacturing of goods which otherwise, if permitted to be made, would be shipped in interstate commerce and, therefore, the denial of these rights is a direct interference with interstate commerce. This same line of reasoning has been presented to the Supreme Court in United Mine Workers v. Coronado Coal Co., supra, not to mention other cases. In this Coronado case, the Court said, as regards this specific question [reading}:

We think that this question has already been answered in the negative by this Court. * * This review of the cases makes clear that the mere reduction in the supply of an article to be shipped in interstate commerce, by the legal or tortuous prevention of its manufacture is ordinarily an indirect and remote destruction of that commerce.

Being indirect and remote, it is, within the meaning of the decisions, incidental and not within the powers of Congress to regulate.

Collective bargaining is not specifically stated in the bill to mean "agreement". In other words, an employer and his employees may bargain or confer, but may not reach a definite agreement and a strike may ensue. The bill does not prevent strikes. Furthermore, it is claimed by many that the National Labor Relations Act does not prevent the employer from bargaining individually with an employee, but this is not the practical interpretation that is being placed upon the provisions of that act, or which would be placed upon the similar provisions in this bill. It is difficult to understand how negotiations with individual employees could be carried on and, at the same time, be free from charges of indulging unfair labor practices as defined, or to reconcile such procedure with the clause that the representatives of the majority of the employees "shall be the exclusive representatives of the employees for the purposes of collective bargaining relating to conditions of employment." The ambiguous phrasing of unfair labor practices, applicable only to employers and not to employees, would place employers in constant jeopardy and the possible imposition of most unreasonable, not to say tyrannical, penalties to the extent of $100,000 per day, or imprisonment for 1 year, or both.

The collective bargaining provisions of the bill cannot be supported by any of the decisions of the Supreme Court, many of which have been cited herein.

Hours and wages: The commission, appointed to administer this bill, is endowed with powers to fix minimum wages, maximum hours, classify employees, and prescribe wage scales for all classes of workers. For the reasons heretofore advanced, these provisions cannot be sustained under the Constitution.

Production control: The provisions of the bill, authorizing the commission to limit production, is direct interference with a purely local matter and is in direct conflict with both the due process requirements of the fifth amendment, and, also, interference with States' rights as guaranteed by the tenth amendment to the Constitution. Code of ethics: The ethical rules embodied in section 28 of the bill have, in some instances, the merit of attempting to establish standards for commercial ethics. Under rule (d), prohibiting the defaming of a

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