xt7wwp9t2q46_131 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/mets.xml https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61.dao.xml American Liberty League 37 linear feet archival material English University of Kentucky This digital resource may be freely searched and displayed.  Permission must be received for subsequent distribution in print or electronically.  Physical rights are retained by the owning repository.  Copyright is retained in accordance with U. S. copyright laws.  For information about permissions to reproduce or publish, contact the Special Collections Research Center. Jouett Shouse Collection (American Liberty League Pamphlets), No. 134 "The Dual Form Of Government And The New Deal: A Study of the Roosevelt Administration's Persistent Attempt to Destroy Local Self-Government in the United States and Substitute Therefor a Centralized, All-Powerful Federal Authority Similar to the Current Dictatorships in Several European Countries," September 14, 1936 text No. 134 "The Dual Form Of Government And The New Deal: A Study of the Roosevelt Administration's Persistent Attempt to Destroy Local Self-Government in the United States and Substitute Therefor a Centralized, All-Powerful Federal Authority Similar to the Current Dictatorships in Several European Countries," September 14, 1936 2013 https://exploreuk.uky.edu/dips/xt7wwp9t2q46/data/59m61/59m61_134/Am_Lib_Leag_134_001/Am_Lib_Leag_134_001.pdf section false xt7wwp9t2q46_131 xt7wwp9t2q46 I o I N  
THE AMERICAN LIBERTY LEAGUE   * *
ir  
The American Liberty League is organized to defend  
and uphold the Constitution of the United States and to        
gather and disseminate information that (1) will teach  
the necessity of respect for the rights of persons and          
property as fundamental to every successful form of gov-  
ernment and (2) will teach the duty of government to   _  
encourage and protect individual and group initiative  
and enterprise, to foster the right to work, earn, save,  
and acquire property, and to preserve the ownership and          
lawful use of property when acquired.   _
The League believes in the doctrine expressed by   l
George Washington in his Farewell Address that while   "
the people may amend the Constitution to meet condi-   l
tions arising in a changing world, there must "be no   * * *
change by usurpation; for this * * * is the customary  
weapon by which free governments are destroyed."  
Since the League is wholly dependent upon the con-   S _ _
tributions of its members for financial support it hopes   A Study of the Roosevelt Adm1n1s» A
that you will become a contributing member. However,   1 t;·etiOn’s Persistent Attempt to De,
if you cannot contribute it will welcome your support as   Stroy Local Se1f_GOV€I.nm€nt in
3 mmmmmbutmg member'   the United States and Substi»
- ---—-———-----———-—-——-- -   tute Therefor a Centralized,
I [E   All-Powerful Federal Au-
` ENROLL NT BLANK   thority Similar to the -
AMERICAN LIBERTY LEAGUE   C_urr°nt Ialctamrshlps
NATIONAL PRESS BUILDING   m Severe E¥"'°P°‘*“
WASHINGTON, D. C.   C°untr1°S
Date .............  
I desire to be enrolled as a member of the  
American Libert Le . E E "-`
Signature .......................................,..   n; ga   Ig
`   6*   E °
E ‘°4> v°
cme ............................................ ,
E I
bs Street ............................................  
E Town ............................................   AMERICAN LIBERTY LEAGUE
  National Headquarters
County .......................... State ..........   NATIONAL PRESS BUILDING
E WASHINGTON, D. C.
Enclosed find my contribution of $ ..........  
to help support the activities of the League.   * *
<1a4> G  
E Document N0. 134
Q September, 1936

   The Dual Form of Government
§ And The New Deal
  *
n   Centralization of the powers of government
  under the New Deal is changing the respective
i roles prescribed by the Constitution for the
l Federal Government and the States. The Federal
§ Government is reaching for more power at the
V   expense of State sovereignty. The trend of the
l past three and one-half years involves a modifi-
`[ cation of the dual form of government to the ex-
; tent of an increase in the economic and social
; fields in which the Federal Government is
_; sovereign and a narrowing of the scope of power
l of the States.
1 thE1%c1§>achrréent upon tltie iiglhts (Lf 1t1hi—:dStatels by
2 e e era overnmen a oug e in e ec
{ by decisions of the Supreme Court, remains a
, distinctive feature of the New Deal. The
W   Roosevelt administration, unwilling to test the
· · h · issue through the normal method of amendment
HEN you have fwmhed ww this Q of the Constitution, clings to the hope that the
pamphlet, please pass it on to some { desired end will be achieved by the process of
. . . i judicial interpretation.
fmend OY acquaintance who might be E At stake in the 1936 election is the appoint-
interested, calling his attention to the   ment of new members of the Supreme Court to
_   fill vacancies believed certain to occur during the
membership blank Ob back Page-   next Presidential term, or perhaps the appoint-
l ment of additional members to accomplish a
i change of attitude.
  The administrations purpose has been made
Q clear by Secretary of Agriculture Henry A. Wal-
  lace who in a foreword to Irving Brant’s book,
i Storm over the Constitution, said:
  "The important thing * * * is to elect Presidents
j vého will nominate the right men to the Supreme
i our .
Q It must be assumed that Mr. Wallace whose
` desire to interpret the Constitution in sucli a way
as to permit the Federal Government to exercise
broad powers over the "general welfare" is
  elaborated in his own book, Whose Constitution,
j reflects the views of the President.
? The question of the preservation of the consti-
  tutional system of government, as construed
{ consistently by the Supreme Court, thus cannot
  be avoided as an issue of the 1936 campaign.
é Paralleling the assumption of greater power
  by the Federal Government in fields reserved to
  the States are two other trends under the New
Q Deal: (a) the delegation of broad legislative
5 power to the executive branch of the Federal
¥ s
1

 Government; and (b) greater control over the 3 one of the vital parts of the network of checks
lives and business activities of the people by ‘ and balances by which the Founding Fathers
infringement upon individual rights guaranteed J Sellght to guefd against eU’00e1`eeY- »
in the Constitution. The three-fold movement A
toward centralized government constitutes a di- 2 New Den] Laws _
rect attack upon fundamental features of the l
American system. t Never before in the history of the United
Significant facts with respect to the dual form j States, 11013 eVe11 d111‘111g the Ree011Sl51Uel>1011
of government under the New Deal follows:   Pe1‘10d fellewing the We? bebweeb the Sbetee
1. Many laws have been enacted increasing the   1155 bhe1°e been such e 111eSS of legielebiee
authority of the Federal Government in fields E broadening the lufiedlebieb of the Federal
reserved to the States. Q Government as during the Roosevelt adminis-
2. Key measures of the New Deal havebeen { tfelviee- U11de1‘ the Plea of an emergency. by
held unconstitutional as an invasion of the 111V0k111§ the geeefel welfare clause of the
. rights of the States. Constitution and by various other devices, the
3. Other laws of the same general character framers of New Deal laws have sought to
remain to be tested before the Supreme Court. establish a basis of validity. The intent to
4. Interpretations of the commerce clause by * widen the field of Federal activity in more than
the Supreme Court in earlier years were sufli- a score of important laws is clear.
ciently clear to leave no doubt that the New In some instances, as in the case of the Na-
Deal program was in conflict with the Constitu- I @101131 Induebflel Recovery Act the Pfebexb ef
tion. I constitutionality was so flimsy that the adminis-
5. Adverse court decisions have failed to alter I tration did everything possible to delay a deci-
’ the determination of the administration to ac-   $1011 by the 00111tS- The ’f»W0·Yee»1° life ofthe NRA
complish awide expansion of Federal sovereignty . had almost expired when the Supreme Court
and an unwise and illegal usurpation of the 4 handed down its adverse opinion. The Agricul-
rights of the States. j tural Adjustment Act was in effect for more than
6. The President and his advisers frankly be- I two and one-half years before it was declared
lieve the system of dual sovereignty, ee oon- » invalid. Repeals of three other agricultural
strued by the courts, to be an outworn relic of Q laws were rushed through Congress at the
"horse and buggy days." I instance of the administration in order to avoid
7. While some of the New Deal laws orig-   additional adverse decisions, one of these laws
inally were limited to an emergency period, the   even having reached the stage of argument be-
purpose unquestionably is to broaden Federal ? fore the Supreme Court. R
power on a permanent basis. é The laws enacted under the New Deal
8. Spokesmen for the New Deal show an in-   broadening the authority of the Federal Govern-
tention to rely upon judicial interpretation to ‘ ment in matters in which the States are sovereign
accomplish a change in the American form of 2 include the following:
government. _
9. A proposed amendment to the Constitution i ENACTED IN 1933'
is held in reserve in the event that the change 4 N@ti0"m·l Icdwérml Reeevefiy A0t··Th1S law
cannot be brought about otherwise. i attempted to break down the system of dual
10. Submission of such an amendment to the ’ sovereignty with respect to control over business
States would be the only course consistent with eel3iV1b1eS· BY the device of codes the Federal
principles of democratic government and would Government sought to regulate production and
avoid the attempt at usurpation of power. trade of a purely intrastate character. The Su-
11. Wider Federal power under the New Deal 5 preme Court in the Schechter case held that the
is excused on the ground that it will be of as- F Federal Government was invading a field
sistance in economic planning and the achieve- { reserved to the States as well as delegating
ment of social ends.   legislative authority to the Executive in viola-
. 12. Improved conditions in industry and l tion of the Constitution. In the NRA codes no
agriculture following invalidation of the NRA   attempt was made te differentiate bebWee11
and the AAA serve to refute the claim that   transactions in interstate commerce, properly
greater Federal control is either necessary or Q subject to control by the Federal Government,
desirable. j and those under the jurisdiction of the States. `
13, The dual form gf government oonstjtutss   The code provisions of the law remained in ef-
4 5 5

 eral Government an opportunity to dictate
fect from the date of enactment, June 16, 1933, , policies to banks which previously were solely
until May 27, 1935, when the adverse decision . under control of the States.
was rendered in the Schechter case. Federal Savings and Loan Associations-—The
Agricultural Adjustment Act—This law, like Supreme Court, in a decision on December 9,
the National Industrial Recovery Act, rep- 1935, held that the Home Owners Loan Act of
resented a major attempt to change the dual June 13,1933,was an unconstitutional encroach-
form of government. Under its terms the Fed- i ment upon the reserved powers of the States to
eral Government sought to control agricultural the extent that it permitted the conversion of
production. The provisions of the law authoriz- r State building and loan associations into Federal
ing the imposition of processing taxes to finance I associations in contravention of State law.
the payment of agricultural benefits under crop Public Works——In the Public Works Title of
control contracts were in effect from the date of . the National Industrial Recovery Act the Fed-
the enactment, May 12, 1933, until the Supreme eral Government assumed powers which have
Court, on January 6, 1936, in the H oosac Mills . been questioned in various cases as an invasion
Corporation case, held that the regulatory plaln of the rights of the States.
gsigswgn invasion of the reserved rights of t e ENACTED IN 1934:
Tennessee Valley Authority Act———This law is Q Agricultural La.ws——The Bankhead Cotton
another measure giving the Federal Government q Control Act and the Kerr Tobacco Control Act
the widest power in matters ordinarily under the both were designed to give the Federal Govern-
control of the States. The Supreme Court, in ment arbitrary and absolute power over
a case involving the sale of power from the Wil- = agricultural production. In both cases the tax-
_ son dam, did not pass on the constitutionality “ ing power was invoked as a means of enforcing
of the law. In pending suits commenced by 19 . control. Had they been permitted to continue
operating utility companies in the United States A in operation the same dictatorial control would
District Courts the constitutionality of the act . have been extended to other agricultural prod-
is being contested on a number of grounds. One ucts. The adverse decision of the Supreme
of the chief points raised is that the TVA act Court in the AAA case, by its express terms,
and the operations thereunder are unconstitu- , assured that the cotton and tobacco acts and
tional because they attempt to extend Federal also the Potato Control Act, enacted in 1935,
power over matters of intrastate commerce and . would be held unconstitutional as an invasion of
local police power in contravention of the ninth I the powers of the States. All three laws were
and tenth amendments. _ repealed in 1936 on the recommendation of the
Securities Act—This law, which gives the p President, but only to avoid inevitable adverse
Federal Government full regulatory power over I decisions.
the issuance and sale of securities, is challenged National Labor Relations Boards—The joint
as an invasion of States rights in a suit com- resolution authorizing the President for a period
menced in August, 1936, in the Supreme Court of one year to establish a board or boards to
of the District of Columbia. The Supreme Court ‘ deal with labor controversies under the National
of the United States, in an earlier case involving Industrial Recovery Act was in line with the at-
this law, did not pass on its constitutionality. tempt to control all industry, whether properly
Banking Laws—The Banking Act of 1933, the i, under the jurisdiction of the Federal Govern-
Emergency Banking Act of the same year and I ment or not. The boards created by the terms
the Banking Act of 1935 give a greater degree ' of this resolution ceased to function when the
of control to the Federal Government over the ? Supreme Court held the NRA unconstitutional.
banks of the country, including banks chartered { Securities Exchange Act—This law accom-
under State laws and outside the Federal plishes Federal regulation of the stock ex-
Reserve System. The Federal Deposit Insur- . changes, although a large proportion of the
ance System, created by the Banking Act of transactions involved have no direct relation to
1933, has made it possible for the Federal interstate commerce. The device used to compel
Government to exercise a considerable measure i compliance is to deny the use of the mails to
of control over the State banks which come 4 brokers or exchanges failing to meet the require-
under its provisions. Similarly the assistance   ments.
given by the Reconstruction Finance Corpora— 5 Municipal Bankruptcy Act—This law, after
tion to State banks, under authority of the ` being in effect for two years, was held unconsti-
Emergency Banking Act, has afforded the Fed- 7
6 .

 tutional by the Supreme Court on May 25, }936, preme Court in the NRA case some months
Orr rtlhe grrerlhd that It lmpalred the S0V€1‘€1gh-ty , léreviously. The adverse decision of the Supreme
0 e a es. - ourt in the AAA case on Januar 6 1936 did
Railroad Retirement A6€—Th€ Supfeme C0U1‘t, not deal with the amended act, butya eubseolhent
in a decision Oh May 6, 1935, held this 1aW te decision in the so-called Rice Millers case, on
be unconstitutional, one of the grounds being January 13, 1936, haid that tha gmgndgd act was
that the pr0m0ti011 of the social Welfare of Tail- subject to the same constitutional objections as
road employees did not constitute a valid exer- tha Original ]aW_ Tha Cguyt had haid that tha
cise of the POW€I’ granted to C011g1'eSS under the original act invaded the reserved rights of the
GOHIIDGFGG Clause of the C0hStitl1ti0h· It WaS States in the regulation of agricultural produc-
also held to be in violation of the due process S tiOn_
clause ef the fifth ttmehdmehh Social Security Act—The constitutionality of
ENACTED IN 1935: A this lair; remfahlrs tg be tested) in the coutrts.  
· comm1 ee o e merican ar ssocia ion in
Gttflrdy BiW'm»t”»0tt$ Char A0t—C0hg1`€SS (ih- " a report submitted to its annual meeting, in
acted this law on August 30, 1935, after Pres- August, 1936, held that the unemployment com- F
ident Roosevelt had urged favorable aCti0I1 ih A pensation plan "requires every State to relin-
spite ef "deubts, hewever 1°€aS0h9»hl€” dS te WS ei, quish its sovereignty to adopt a law of Federal
constitutionality. The Supreme Court on May dictaticny
18, 1936, held it to be unconstitutional on the Wcric Relief ACt__Und€r this law legislative
ground that the mining of coal is a local business hcwer is delegated to the president in fields
nortnsrubject to regulation by the Federal Govern- hrlhhcrly strhiect to ghe Congrog ci the States
rrr · e Unite tates ourt 0 eal for h
. National Labor Relations Act—This law was District ci Cclurrlhia, cu May rig, lelgg inrr S
ehdclied 0h JUIY 5i 1935, dV€ OY six Weeks after case involving a project of the Resettlement
the deeisieh ef the Supreme Geurt ih the NRA Administration, held that the Work Relief Act
ease- Despite the speeiiie firidiiis that the Fed- "invades the reserved rights of the States be-
tm} G0V€I`hm€ht had H0 C0hSi»h»hi·i0h9»r POWBY cause it attempts to reach and control matters
te regulate preduetieii aud trade ef aa intrastate ever which the Constitution has given Congress
character, Congress again invaded a iield DO pcwcry
reserved to the States. The Supreme Court as Sci; gcasercetica AC~t;.Und€r this law eu-
yet hee ner ruled ea rhe rel"- rn several deer acted February 29 1936 the administration is
sists ia the rewer Federal eedrre rr hee beer attempting to continue eontrol of agricultural
held that the act deals with matters which are production Which When proposed by mere direct
suhieet te the iurisdietiea ef the States rather methods inlthe Agricultural Adjustment Act was
than ef the FedererGeVernmenr· held to be unconstitutional. The Federal—aid
puede Utility Hdrdmg Cemlddny ACr—The provisions of this law effective after January 1
eaereaehmerit upeii States rights urider this law was contemplate the autocratic imposition oi
is one of the chief questions raised in litigation A the srcvereiehty ci the Federal Geverhmeht upon
soon to reach the Supreme Court. In a decision r the scvereieuty ci the Sta·t]€S•
in the United States District Court at Baltimore i
‘ the act was declared to be unconstitutional in   C D . .
its entirety on thehground of an attempted reg- ty eurt eererone
ulation beyond t e authority of the Federal ' Th · ih ii ··
Government. The United States Circuit Court l Court?dieioreereghenattreengtedciiygseoridsrieetleer 
er Arrests, ir the Same ee*ee> held the att te he of the States are those affecting the National
unconstitutional with respect toepublic utility [ ludustrial Reccvery Act the Agricultural Ad,
companies involved only in intrastate business.   justmeht Act and the Griffey Bitumineue Gear
gergesigrpreme Geert has ret Yer grverr ree   Act. The decision inlthe NRA case was un- ·
— Agricultural Adjustment Act Amendments- r gleglroreii While brheeetm eee- Areehend erueeh
Congress, on August 24, 1935, enacted extensive the Elle   y Z0 es O Sri te .re§' H .e‘
amendments to the Agricultural Adjustment Act. t· Cegeih err emu; Vries img? e re te eermerer
The original law was largely rewritten with a dlonl 0 e-e er O ged berm; r e Sysirere er .
view to bringing it within the terms of the Con- rr? egvereraerr y prevhr e Y r e Ceeerreeererr
stitution in the light of the decision of the Su- rr r e eeee re e Supreme Ceure Seed:
s 9 r

 "In determining how far the federal government
may go in GOI1’61‘0lliI1g i¤t1‘&St&lJ€ l31‘&HS&GiGi0¤S UP011 appropriation of the funds raised, and the direction
the ground that they ‘affect’ interstate commerce, for their disbursement, are but parts of the plan.
there is a necessary and well-established distinction They are but means to an unconstitutional end.
between direct and indirect effects. The precise "From the accepted doctrine that the United
line can be drawn only as individual cases arise, States is a government of delegated powers, it fol-
but the distinction is clear in principle. Direct lows that those not expressly granted, or reasonably
effects are illustrated by the railroad cases we have to be implied from such as are conferred, are re-
cited, as e.g., the effect of failure _to use prescribed served to the states or to the people. To forestall
safety appliances on railroads which are the high- any suggestion to the contrary, the Tenth Amend-
ways of both interstate and intrastate commerce, ment was adopted. The same proposition, otherwise
injury to an employee engaged in interstate trans- stated, is that powers not granted are prohibited.
portation by the negligence of an employee en- None to regulate agricultural production is given,
gaged in an intrastate movement, the hxing of and therefore legislation by Congress for that pur-
rates for intrastate transportation which unjustly pose is forbidden. * * *
discriminate against interstate commerce. But "The power of taxation, which is expressly
where the effect of intrastate transactions upon granted, may, of course, be adopted as a means to
interstate commerce is merely indirect, such trans- carry into operation another power also expressly
actions remain within the domain of state power. " granted. But resort to the taxing power to effec-
If the commerce clause were construed to reach all tuate an end which is not legitimate, not within the
enterprises and transactions which could be said to scope of the Constitution, is obviously inadmissi-
have an indirect effect upon interstate commerce, ble. * * *
the federal authority would embrace practically all ‘: "Hamilton himself, the leading advocate of broad
the activities of the people and the authority of interpretation of the power to tax and to appro-
the State over its domestic concerns would exist priate for the general welfare, never suggested that
only by sulferance of the federal government. * * * any power granted by the Constitution could be
"Our growth and development have called for used for the destruction of local self-government in
wide use of the commerce power of the federal the states. Story countenances no such doctrine. It
government in its control over the expanded ac- seems never to have occurred to them, or to those
. tivities of interstate commerce, and in protecting who have agreed with them, that the general welfare
that commerce from burdens, interferences, and of the United States, (which has aptly been termed
conspiracies to restrain and monopolize it. But the ‘an indestructible Union, composed of indestructible
authority of the federal government may not be States’), might be served by obliterating the constit-
pushed to such an extreme as to destroy the dis- uent members of the Union. But to this fatal con-
tinction, which the commerce clause itself estab- clusion the doctrine contended for would inevitably
lishes, between commerce ‘among the several States’ lead. And its sole premise is that, though the
and the internal concerns of a State. The same makers of the Constitution, in erecting the federal
answer must be made to the contention that is government, intended sedulously to limit and dehne
based upon the serious economic situation which its powers, so as to reserve to the states and the
led to the passage of the Recovery Act,-the fall people sovereign power, to be wielded by the states
in prices, the decline in wages and employment, and their citizens and not to be invaded by the
and the curtailment of the market for commodities. United States, they nevertheless by a single clause
Stress is laid upon the great importance of main- gave power to the Congress to tear down the bar-
taining wage distributions which would provide the riers, to invade the states’ jurisdiction, and to be-
necessary stimulus in starting ‘the cumulative forces _ come a parliament of the whole people, subject to
making for expanding commercial activity} With- no restrictions save such as are self-imposed. The
out in any way disparaging this motive, it is enough argument when seen in its true character and in the
to say that the relcuperagive efforts of the federal light of its inevitable results must be rejected."
government must e ma e in a manner consistent · · · · · ·
with the authority granted by the Constitution. C IIE Iii demsuén holdmg the  ugey Bltummous
“We are of the opinion that the attempt through ee pt te 8 uncqnstltutlondl the Supreme
tho provisions of tho Code to fix tho hours and COUITJ Cltéd I1'l9iI1Y €&I`l1€1' I'l1l1I1gS 111 Wh1Cl'l ll`; W&S
wages of employees of defendants in their intrastate ., consistently hold that production or mgnufaoturo
business was not a valid exercise of federal power." i' was not Commerce as used in the COnSti»wt'iOn_
In the AAA case the Supreme Court asserted The Geert lh thle decieicn Said?
that control of agricultural production is beyond , _ “AS used lh the C¤¤S¤f¤t1¤¤, the Wcfd ‘cemmerce’
the powers of the Federal Government, that the " lsuihgsggtég  Pgggeinghsgii tf£’;°g;‘t‘§&O€;’” the
POWBY cf tttxatton cannot be used tc eccemplieh iihage, sale, and exchange of commoiiities betvsiiieln
an unconst1tut1onal_end and that the power to the citizens cf the different states. And the power
tax and to appropriate for the general welfare to regulate commerce embraces the mstruments by
does not sanction an activity which lacks consti- Witt}? cgmmeme lstlfemid °“· Q; T * , . h
tuticeel authority. _ _ _ _ equivglenatvgfihinphrgse‘i1$t;;gdurs;OfX§rFthI§inui;o;e;
The Supreme Court in the AAA decision said: of trade.? Plainly, the_incidents leading up tc_and
"The eet invades the reserved agree ofthe states. §§,*§§‘§,”l,',i,‘,¥§,§Qtgjh€TYf,“{,.‘}§,,‘f§,y‘§§°,8.§t,§l‘Z,f“,‘,§‘,,‘§°’§§*§"§§‘E
It is 8 Stetutefy Pleh tc regulate ehd eehtrel agri- ing of their wages hours of labor and working con-
0¤lt¤1`e}PYedueti0h» emetteh heYeh"d the Pewere de1e' ditions, the bargaining in respect of these things-
gated tc the federal Swehhmeht- The teX» the whether carried on separately or collectively-each ,
10 and all constitute intercourse for the purposes of
11 Q

 production, not of trade. The latter is a thing apart of Appeals at New Orleans in a case involving
frenhthe gelatioa of ergrlgrer aaugeemrggggghjggy tho Jones and Laughlin stooi Corporation, do-
u 1 1 — - ·
iii:t2er.pl§xtli~§tii;iorciCr(ifIi:2i>a1 fioriiithe ririine is the aim °1d‘?Cl on June 15> _1®6· The Court) denied 3
and the completed result of local activities. Com- PQUUOH by thi? N9·i»10H&l L3b0I` RBIEWIOUS Board
merce in the coal mined is not brought into being for the reinstatement of employees of the com-
by force tot thgse. aciivlciieiésbglgtilggl “§€‘;E_{cai;1?;’ISH pany. In so doing the Court held that "the
` 1     • • • • •
§$§2r‘tIt,i2§’ aitnn?n‘§“nnngS no subjeiizt footer of Beard has ao Jurisdiction ever a labor dispute
commerce into existence. Commerce disposes of it. between employer and employees touching the
"A consideration of the foregoing, and of many discharge of laborers in a steel plant, who were
cases which might be added to_ those already cited, engaged Only in manufacture.),
renders inescapable the conclusion that the effect of The Court continued,
the labor provisions of the act, 1nclud1ng those in '
respect of minimum Wages, Wage agreements, col- . "The Constitution does not vest in the Federal
leGtiV€ baltgaming, and the L&b0I` B0&Fd and its Government the power to regulate the relation as
powers, primarily falls upon production and not such of employer and emp_loyee in production or
upon commerce; and confirms the further resulting   manufacture
conclusion that production is a purely local activity.   "One who produces or manufactures a commodity,
It follows that none of these essential antecedents subsequently sold and shipped by him in interstate
of production constitutes a transaction in OI' fOI‘mS   commerce, whether such sale and shipment were
any part of interstate commerce. Schechter Corp. v. -. originally intended or not, has engaged in two dis-
United States, supra, p. 542, et seq. Everything tinct and separate activities. So far as he produces
which moves in interstate commerce has had a local or manufactures a commodity, his business is purely
origin. Without local production somewhere, inter- local,
state commerce, as now carried on, would practically "So far as he sells and ships, or contracts to sell
disappear. Nevertheless, the local character of and ship, the commodity to customers in another
. mining, of manufacturing and of crop growing is a State, he engages in interstate commerce. In respect
_ fact, and remains a fact, Whatever may be done to the former he is subject only to regulation by
with the products." the State; in respect to the latter, to regulation
only by the Federal Government. (Utah Power
Pending Cases and   C0. v. Pfost, 286 U. S. 165, 182.) Produc-
tion is not commerce, but a step in preparation for
The question of invasion of States rights is C0mm€1“<>€·"
involved in numerous New Deal laws which Past Decisions
remain to be passed upon by the Supreme
Court. While the Supreme Court itself has admitted
Among laws already involved in litigation in difficulty in drawing a precise line between the
the lower courts or certain to be tested are the power of Congress over commerce and the power
National Labor Relations Act, the Public Utility of the States, the decisions in former years would
Holding Company Act, the Tennessee Valley appear to have been sufficiently clear to leave
Authority Act, the Securities Act, the Securities little doubt as to the invalidation of such laws
Exchange Act, the Work Relief Act, the Social as the National Industrial Recovery Act, the
Security Act and the Soil Conservation and Agricultural Adjustment Act, the Guffey Bitu-
Domestic Allotment Act. minous Coal Act and the National Labor
The large number of important laws with Relations Act.
respect to which the issue of encroachment upon Prior to the Civil War the constitutional
the dual form of government has been raised power to regulate interstate commerce was
establishes without question a trend toward ` exercised by Congress principally in connection
greater Federal power as a basic feature of the l with the construction of interstate bridges and
New Deal. I an extension of the admiralty jurisdiction. The
The opinion of the National Lawyers Com- »_, Interstate Commerce Act of 1887 was the pioneer
mittee of the American Liberty League that the in the regulation of interstate railroads. This
National Labor Relations Act is unconstitutional law and subsequent laws relating to telephone,
has already received support in decisions in a telegraph and cable companies and sea carriers
, dozen or more United States District Courts and were upheld by the courts. The Adamson law of
in the Circuit Courts of Appeals in at least three 1916 regulating hours and wages of railroad
different jurisdictions. A decision by the Su- employees and the recapture clause of the 1920
preme Court is expected during the coming Transportation Act were among important laws
winter. in the field of transportation upheld by the
An example of the adverse decisions on this courts. The Sherman Anti-Trust Act of 1890,
law is that of the United States Circuit Court in which Federal regulation of commercial
12 13

 stitution in the horse-and-buggy days of the eight-
enterprise was undertaken, and the later Clayton "e§§l;€;§?Ifgll$giI;c°;l; for th Sect, f t, 1
· · e ion o na 1ona
Act end the Federal Tl`?Cl€ Cemmllelslen Act; thought represented by himself, the Pres