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The Scope of the Phrase Interstate Commerce - Shall It Be Redefined?

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The Scope of the Phrase Interstate Commerce - Shall It Be Redefined? Denver Law Review Volume 32 Issue 6 Article 4 June 2021 The Scope of the Phrase Interstate Commerce - Shall It Be Redefined? Thomas A. Gilliam Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Thomas A. Gilliam, The Scope of the Phrase Interstate Commerce - Shall It Be Redefined?, 32 Dicta 373 (1955). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. Sept.-Oct., 1955 DICTA THE SCOPE OF THE PHRASE "INTERSTATE COMMERCE"-SHALL IT BE REDEFINED? By THOMAS A. GILLIAM, of the Colorado Bar "It is to Marshall that we turn for the description of the power confided to Congress and its scope."-Chief Justice Hughes.' Occasionally, judges are badgered by Philadelphia lawyers into a rather extraordinary position. In 1946, Prudential Insur- ance Company v. Benjamin 2 was decided by the Supreme Court, a case which calls for some redefinition of Article I, Section 8, Clause 3 of the United States Constitution: The Congress shall have Power . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. The Prudential case upheld the validity of the McCarran Act3 enacted in view of United States v. Southeastern Underwriters As- sociation,4 in which the Court had declared that insurance is an interstate business. Since before the latter decision, insurance was generally thought not subject to the commerce clause, notably an implication derived from Paul v. Virginia 5 the states had evolved regulation of this phase of commerce, which Congress, by the McCarran legislation, sought to implement and develop. The effect of the Act was to declare, "that the continued regulation and tax- ation by the several States of the business of insurance is in the public interest, and that silence on the part of Congress shall not be construed to impose a barrier" to such regulation or taxation. In sustaining the validity of the Federal legislation, Mr. Jus- tice Rutledge also answered the attacks made by the insurance company on a state tax law, which for purposes of discussion he assumed to be discriminatory:" Here both Congress and South Carolina have acted, 'The Supreme Court of the United States, 143 (1928). 2 328 U. S. 408, 66 S. Ct. 1142, 90 L. Ed. 1342, 164 A. L. R. 476. '59 STAT. 33, 15 U. S. C. A. 1011-1015 (1945). 322 U. S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944); rehearing denied in 323 U. S. 811, 65 S. Ct. 26, 89 L. Ed. 646 (1944). 575 U. S. 168, 8 Wall. 168, 19 L. Ed. 357 (1869); Hooper v. California, 155 U. S. 648, 15 S. Ct. 207, 39 I Ed. 297 (1895). For a similar situation in baseball, of. Federal Baseball Club of Baltimore v. National League of Professional Base- ball Clubs, 259 U. S. 200, 42 S. Ct. 465, 66 L. Ed. 898 (1922), and Gardella v. Chandler, 172 F. 2d 402 (2nd Cir., 1949). 6Prudential Insurance Co. v. Benjamin, 328 U. S. 408, note 2 supra, 429. While Amendment XIV, Sec. 1, provides that no person shall be denied by a state the equal protection of its laws, this to Rutledge was a dangerous blurring of ideas. See Robertson v. People of the State of California, 328 U. S. 440, 66 S. Ct. 1160, 90 L. Ed. 1366 (1946); Cf. Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A. L., R. 1469 (1934); Crandall v. Nevada, 73 U. S. 35, 6 Wall. 35, 18 L. Ed. 744 (1868); Edwards v. California, 314 U. S. 160, 62 S. Ct. 164, 86 L. Ed. 119 (1941) Douglas, concurring opinion. DICTA Sept.-Oct., 1955 and in complete coordination, to sustain the tax. It is therefore reinforced by the exercise of all the power of government residing in our scheme. 7 And with reference to constitutional attacks made by Prudential 8 on the Congressional legislation itself, his answer was even more out of the ordinary to the effect that these arguments are: On the theory that no more has occurred than that Congress has "adopted" the tax as its own, a conception which obviously ignores the state's exertion of its own power and, furthermore, seeks to restrict the cooridnated exercise of federal and state authority by a limitation applicable only to the federal taxing power when it is exerted without reference to any state actionY (Italics supplied.) And while state action was not elevated to the same plane as the congressional, the effect is virtually the same. 10 This superstate idea appears elsewhere in the opinion with reference to federal- state action. A gestalt results, the whole is greater than its parts. To justify this conclusion Justice Rutledge reflected that begin- ning with Gibbons v. Ogden," in the silence of Congress, i.e., when that body has not acted under the great powers given it by the commerce clause, the Court has often taken the initiative. The author of Gibbons v. Ogden, Justice Rutledge, explained in a foot- note quote was obliged to do so by necessity, saying, "Judges leg- islate interstitially and the interstices were great in Marshall's time." 12 Although there have been times when Congress had not agreed with the efforts of the Court as a substitute legislature, and had later disavowed the legislation; nevertheless he went on: The fact remains that, in these instances, the sus- taining of Congress' overriding action has involved some- thing beyond correction of erroneous factual judgment in deference to Congress' presumably better-informed view of the facts and also beyond giving due deference to its conception of the scope of its powers, when it repudiates, 7Id. at 435-436. 8 Of this it was said at p. 412, "The versatility with which the argument in- verts state and national power, each in alternation to ward off the others inci- dence, is not simply a product of protective self-interest. It is the recurring manifestation of the continuing necessity in our federal system for accommodat- ing the two great basic powers it comprehends." 9 Id. at 438. "Note 6 supra. 1"22 U. S. 1, 9 Wheat. 1, 6 L. Ed. 23 (1824). "Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 413, note 2 supra, citing Ribble, State and National Power Over Commerce 47. Ribble's paper grew out of Dean Stone's assignment, note 68 post. Sept.-Oct., 1955 DICTA just as when its silence is thought to support, the infer- ence that it has forbidden state action.1 14 This "something beyond" involved is never quite explained, but an act of Congress had never before been elevated above the Constitution. Marshall saw to that.'; Perhaps the Court was say- ing that the origin of its own power to act in the silence of Con- gress is obscure, and if Congress speaks what authority have we to say, nay? Chief Justice Hughes once said, "the Constitution is what the judges say it is,"' 6 but isn't it another matter, alto- gether, to say that the Constitution is what the Congress says it is when it sanctions state action? Justice Rutledge, nevertheless, felt that such sanction was supported by "the whole trend of de- cision." 1 Equally obscure, however, as the source of the Court's power in the silence of Congress, is in coexistence with the former, the origin of the power of Congress to enable the states to do that which they otherwise could not.'6 Perhaps what Rutledge meant was that, when the states and federal government form a partner- ship in regulation, something in the nature of a treaty results. If this be the case the necessity of redefinition is manifest, or at least a historical reexamination of the trend of decision is indicated, and since as all these matters troubled Marshall in the great case of Gibbons v. Ogedn, it might be advisable to turn first, as all de- cisions do, to that decision. THE SCOPE OF THE POWER Marshall has been much maligned. 19 He has left the impres- sion of being the true apostle of federalism, the autocrat of the bench, the uncompromising figure of judicial supermacy. Never a popular figure, he filled the bill. And yet in Gibbons v. Ogden, his only popular decision, 20 and in Willson v. Blackbird Creek Marsh Co."1 he possibly indicated, at the beginning, the whole scope of the commercial power, and upon review, as reexamination of legends often do, the impression left by Marshall is somewhat different from that assumed. 1Id. at 425-426. " An explanation possibly lies in Article 1, Sec. 10, Cl. 2 of the CONSTITU- TION: No State shall, without the consent of Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its Inspection Laws. "Marbury v. Madison, 5 U. S. 137, 1 Cranch. 137, 2 L. Ed. 60 (1803). "Cited by Abel, Commerce Regulation Before G4bbons v. Ogden; Interstate TransoprtationFacilities, 25 N. CAR. L. R. 12 (1947). ,7 Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 433, note 12 supra. 'sMurphy, Insurance Under the Commerce Clause. 33 IA. L. R. 91, 100 (1947). " See Abel, Commernce Regulation Before Gibbons v. Ogden, Trade and Traf- fic, 14 BROOKLYN L. R. 38, 215 (1941); Green, Solm, Heretical Renlirks on the Federal Power Over Coimm erce.
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