abstract theories been so strikingly revealed. Many of the theories we have held are being tested, as never before, in the furnace of this greatest and most terrible of wars. Some of them have developed unforeseen and deplorable corollaries. It is our duty today to reëxamine our theories from the point of view of the interests of humanity. Let us ask ourselves whether they work for the welfare and the progress of the world; whether they tend to further the immemorial effort of humanity to rise from the mire of brute struggle for survival to the clean heights of a noble rivalry in common efforts for the general good. DECISIONS OF THE SUPREME COURT OF THE QUESTIONS 1914-1917 THOMAS REED POWELL Columbia University In previous issues of this REVIEW' Professor Wambaugh and the late Judge McClain have summarized the decisions of the Supreme Court on constitutional questions from 1909 to 1914. It is the purpose of this and a succeeding paper to deal in like manner with the decisions of the last three years. Owing to the number of cases decided during the triennium, the writer must content himself with the rôle of annalist and refrain from assuming that of analyst. For the benefit of those who desire fuller comment or criticism, references are given to articles and notes in various legal periodicals discussing the more important cases. Since the expiration of the October term of 1913, three changes have occurred in the personnel of the bench. Mr. Justice Lurton died July 12, 1914, and his successor, Mr. Justice McReynolds, took his seat October 12, 1914. Illness prevented Mr. Justice Lamar from participating in any of the decisions of 1 American Political Science Review (1910) iv, 483-497; (1912) vi, 513–523; (1915) Ix, 36-49. For useful reviews of decisions under the due-process and equal-protection clauses, see Francis J. Swayze, "Judicial Construction of the Fourteenth Amendment," 26 Harvard Law Review 1; Charles Warren, "The Progressiveness of the United States Supreme Court," 13 Columbia Law Review 294; and "A Bulwark to the State Police Power-The United States Supreme Court," 13 Columbia Law Review 667. For a chronological list of all the Supreme Court decisions on the fourteenth amendment see C. W. Collins: The Fourteenth Amendment and the States (Little, Brown & Co., 1912), Appendix E. For chronological and other lists of state and federal statutes declared unconstitutional by the Supreme Court see appendices in B. F. Moore: The Supreme Court and Unconstitutional Legislation (Columbia University Studies in History, Economics and Public Law, LIV, No. 2, Longmans, Green & Co., 1913). the October term of 1915. He died on January 2, 1916. The commission of Mr. Justice Brandeis, who succeeded him, was not recorded until June 5, 1916, so that during the 1915 term only eight justices participated in the work of the court. Mr. Justice Hughes resigned June 10, 1916, to accept the Republican nomination for the presidency, and his successor, Mr. Justice Clarke, took his seat on October 9, 1916. The bench as at present constituted consists of Chief Justice White, appointed associate justice by President Cleveland and chief justice by President Taft; Mr. Justice McKenna, appointed by President McKinley; Justices Holmes and Day, appointed by President Roosevelt; Justices Van Devanter and Pitney, appointed by President Taft; and the three new justices appointed by President Wilson. During the last three years, as in the years immediately preceding, the commerce clause and the fourteenth amendment have raised by far the greater part of the important constitutional questions which the court has had to answer. And these are the questions on which the court gets the least light from the language of the Constitution. For the commerce clause contains no definition of what commerce is interstate, no indication of what shall be deemed a regulation of commerce, and no declaration with respect to the effect of the grant to Congress on the reserved powers of the states. The due-process and equal-protection clauses merely indicate that there is a boundary which legislative interference with individual liberty and property must not transgress. The lines of that boundary are marked out, not by the Constitution, but, as the Supreme Court has told us, "by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded."2 I. THE COMMERCE CLAUSE The applications of the commerce clause include the determination of what commerce is foreign or interstate and what intrastate, and the determination of what constitutes a regulation of commerce. For it is familiar doctrine that not all state 2 Davidson v. New Orleans (1878) 96 U. S. 97, 104. action which has some effect on interstate commerce amounts to a regulation thereof. In discussing state interferences with interstate commerce, the court uses the word "regulation" as a word of art to denominate only such factual regulations as have a direct effect on interstate commerce. Those state interferences with interstate commerce which merely incidentally affect such commerce are not called "regulations" thereof. The distinction is of course one of degree. The state may interfere with interstate commerce by the exercise of its taxing powers or by police regulations. In considering the applicability of state police regulations to commerce which is interstate, it is important to know whether or not Congress has dealt with the same subject. For though some state interferences are regarded as prohibited by the Constitution, others are within the power of the state unless there has been some congressional action which is deemed to preclude state legislation. In presenting the cases on interstate and foreign commerce, attention will first be given to those defining the power of Congress. This definition depends upon an interpretation, not only of the commerce clause, but also of the due-process clause of the fifth amendment. The cases involving the power of the states will be classified under the heads of taxation and the police power, and the latter head will be subdivided into state action in the absence of congressional regulation and state action after congressional regulation. POWERS OF CONGRESS UNDER THE COMMERCE CLAUSE The most important congressional statutes with which the court has had to deal in the last three years are the WebbKenyon Act and the Adamson Law. In Clark Distilling Co. v. Western Maryland Ry. Co.3 the former was sustained and the * (1917) 242 U. S. 311. Justices Holmes and Van Devanter dissented, without opinion. See D. O. McGovney, "The Webb-Kenyon Law and Beyond," 3 Iowa Law Bulletin 145; S. P. Orth, "The Webb-Kenyon Law Decision," 2 Cornell Law Quarterly 283; T. R. Powell, "The Validity of State Legislation Under the Webb-Kenyon Law," 2 Southern Law Quarterly 112; Lindsay Rogers, "The Webb-Kenyon Decision," 4 Virginia Law Review 558. See also notes in 17 Columbia Law Review 144, 30 Harvard Law Review 491, 1 Minnesota Law Review 179, and 26 Yale Law Journal 399. court thereby declared that it was within the power of Congress to prohibit the interstate transportation of intoxicating liquor intended by any person interested therein to be received, possessed, used or sold in violation of the law of the state of destination. Two years earlier in Adams Express Co. v. Kentucky the court had held that the congressional act did not apply unless the liquor was intended to be used in violation of the law of the state of destination. The Clark Distilling case construes the act more broadly, although it does not make entirely clear whether a state can forbid receipt of liquor from other states unless it also forbids and penalizes its possession after receipt. The most serious constitutional questions connected with the federal statutes dealing with interstate commerce in intoxicating liquor concern the powers of the states after congressional action designed to permit state interferences with such commerce. Rigorous adherence to the schematism of this article would allocate the discussion of this problem to the section dealing with state police power affecting interstate commerce after congressional regulation of the same subject matter. But inasmuch as the effect of the other congressional action to be considered has been to lessen rather than enlarge the powers of the state, it will serve convenience if not logic to include at this point the cases dealing with the effect of the Wilson Act and the Webb-Kenyon Act on the power of the states to interfere with intoxicating liquor of extrastate origin. Three cases annulling state interferences after the Wilson Act and before the Webb-Kenyon Law demonstrate the need of the latter to enable the states to effectuate their prohibition policies. Rossi v. Pennsylvania held that the state could not punish the delivery within the state of liquor brought from other states to complete executory sales negotiated within the state. (1915) 238 U. S. 190. See 81 Central Law Journal 416, and 3 Virginia Law Review 143. See infra pp. 40-45. (1915) 238 U. S. 62. See Lindsay Rogers, "Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act," 4 Virginia Law Review 174. |