Chapter 4

The failure of these attempts to turn the Fourteenth Amendment to the advantage of the woman suffrage movement in no wise checked the movement or discouraged its leaders. They redoubled their efforts among the separate states, and worked to such good purpose that the opposition presently began to take on the aspect of a forlorn hope. "Votes for Women" became an accomplished fact in many states, and appeared on the verge of accomplishment in most of the others. Some states, however, were still holding out when the leaders of the movement, impatient of further delay and determined to coerce the recalcitrants, took the matter into the national arena and procured the proposal and ratification of an amendment to the Federal Constitution. The amendment provides:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

In other words, it adopts verbatim the phraseology of the Fifteenth Amendment, merely substituting the word "sex" for the words "race, color, or previous condition of servitude."

So much for the historical background of the so-called Susan B. Anthony Amendment. It remains to consider just how far the amendment constitutes an encroachment by the Federal Government on the powers of the states.

In so far as it affects the qualifications of voters at national elections (i.e., for president, senators, representatives) the encroachment is more apparent than real. As has already been pointed out, this is essentially a national question, and the Constitution adopted the suffrage qualifications prescribed by state law, not as a matter of principle, but for reasons of expediency and convenience.

In so far, however, as the amendment imposes woman suffrage on the states in elections of state and local officials the situation is entirely different. That staunch advocate of national power, Alexander Hamilton, said in the _Federalist_:[1]

Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular states, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the state governments?

[Footnote 1: _Federalist_ LIX.]

What Hamilton scouted as impossible has been accomplished in the Nineteenth Amendment. It in effect strikes out the word "male" from the suffrage provisions of state constitutions. It overrides state policy and interferes with the right of states to manage their own affairs. From the theoretical standpoint a more serious inroad on state prerogatives would be hard to find. Control of the suffrage is one of the fundamental rights of a free state. It belonged to the North American states before their union, and was not surrendered to the National Government when the union was effected. Moreover, the encroachment has a very practical side. To confer the suffrage on the educated women of Connecticut was one thing; to confer it on the Negro women of Alabama was quite a different matter, involving different considerations. The amendment took no heed of such differences but imposed a uniform rule on all the states, regardless of local prejudices or conditions.

It is true that a somewhat similar encroachment on state power had been made by the Fifteenth Amendment, designed to enfranchise the Negroes. That amendment, however, had its origin in conditions growing out of the Civil War, and claimed its justification in the necessity for protecting the freed slaves against hostile state action. It was avowedly an emergency measure, and the success with which it has been nullified in some quarters testifies to the unwisdom of forcing such measures upon reluctant states.

The conditions surrounding the adoption of the Nineteenth Amendment were altogether different. Few people take seriously the alleged analogy between the women and the slaves. The constitutional method--action through the separate states--was being pursued with signal success. The states were rapidly falling in line. Most of them had already granted woman suffrage or were ready to grant it. There was no overmastering need for coercing the states that were not yet ready. An impartial student of the period will be apt to conclude that the Nineteenth Amendment was the product of impatience rather than necessity.

Someone may ask, "What effect will the granting of votes to women have on the problem of preserving the constitutional equilibrium?" The ultimate power lies with the voters, and the women with votes now equal or outnumber the men. What is the reaction of women voters likely to be toward questions of political theory?

Ours is a governmental scheme of extreme complexity. As with animal organisms so with political systems, the higher they rise in the scale of development the more complicated they tend to become. An absolute monarchy is simplicity itself compared with our dual system. To maintain the proper adjustment of such a machine requires intelligence of a high order. The machine will not run itself and male tinkers have abundantly demonstrated that it is not fool-proof. But something more is required than mere intelligence. There must be, at least among the leaders, an instinct for governmental problems as distinguished from those of a merely social or personal character; an ability to recognize and a willingness to conform to underlying principles.

How will the women voters meet this test? Granting (what few will dispute) that their intelligence at least equals that of the men, will they be as likely as men to look beyond the immediate social welfare problem to the governmental principle at stake? Will an abstract proposition hold its own in their minds against a concrete appeal?

We do not attempt to answer these questions, but they contain food for thought.

VI

CONGRESS _versus_ THE SUPREME COURT--THE CHILD LABOR LAWS

The present Federal Revenue Act is noteworthy in more aspects than its complexity and the disproportionate burden cast on possessors of great wealth. To students of our form of government it is particularly interesting because of provisions[1] purporting to impose a tax on employers of child labor, for these represent an attempt by Congress to nullify a decision of the Supreme Court and grasp a power belonging to the states. The story of these provisions throws a flood of light on a method by which our Constitution is being changed.

[Footnote 1: Revenue Act of 1921, Title XII.]

The evils of child labor have long engaged the attention of philanthropists and lawmakers. In comparatively recent years child labor laws are said to have been enacted in every state of the Union. These statutes, however, lacked uniformity. Some of them were not stringent enough to satisfy modern sentiment. Moreover, commercial considerations entered into the reckoning. Industries in states where the laws were stringent were found to be at a disadvantage in comparison with like industries in states where the laws were lax, and this came to be regarded as a species of unfair competition. The advantages of uniformity and standardization seemed obvious from both the philanthropic and the commercial viewpoints, and Congress determined to take a hand in the matter.

No well-informed person supposed for a moment that the regulation of child labor was one of the functions of the General Government as those functions were planned by the makers of the Constitution. The United States Supreme Court had declared over and over again that such matters were the province of the states; that "speaking generally, the police power is reserved to the states and there is no grant thereof to Congress in the Constitution."[1] For some years, however, Congress had been finding ways to legislate indirectly upon matters which it had no power to approach directly. Under the grant of power in the Constitution "to regulate commerce with foreign nations and among the several States,"[2] Congress had enacted laws purporting to regulate commerce but in reality designed for the suppression or regulation of some other form of activity. These enactments had for the most part been sustained as constitutional by the Supreme Court (though with misgivings and sharp differences of opinion), the Court holding that it could not pass on the motives for congressional action. The enactment of a law regulating child labor seemed therefore but another step along a trail already blazed, and Congress determined to take that step.

[Footnote 1: _Keller v. United States_, 213 U.S., 138.]

[Footnote 2: Art. I, Sec. 8.]

The statute enacted by Congress[1] prohibited transportation in interstate commerce of goods made at a factory in which, within thirty days prior to their removal therefrom, children under the age of fourteen years had been employed or permitted to work, or children between the ages of fourteen and sixteen had been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 P.M. or before the hour of 6 A.M. The constitutionality of the act was at once challenged and suit brought to test the question. The Supreme Court held, by a vote of five to four,[2] that Congress had overstepped its power. The previous decisions which had upheld somewhat similar inroads on the police power of the states were distinguished and the act was declared unconstitutional.

[Footnote 1: Act of September 1, 1916, 39 Stat., 675.]

[Footnote 2: _Hammer v. Dagenhart_, 247 U.S., 251.]

The distinction drawn by the majority of the Court between this and previous decisions was a narrow one and its validity has been questioned by some writers. It has nowhere been more clearly explained than in an address delivered before a body of lawyers by a former member of the Court.[1] Mr. Hughes said:

There has been in late years a series of cases sustaining the regulation of interstate commerce, although the rules established by Congress had the quality of police regulation. This has been decided with respect to the interstate transportation of lottery tickets, of impure food and drugs, of misbranded articles, of intoxicating liquors, and of women for the purpose of debauchery. It was held to be within the power of Congress to keep "the channels of interstate commerce free from immoral and injurious uses." But the Court in this most recent decision has pointed out that in each of these cases "the use of interstate commerce was necessary to the accomplishment of harmful results." The Court, finding this element to be wanting in the Child Labor Case, denied the validity of the act of Congress. The Court found that the goods shipped were of themselves harmless. They were permitted to be freely shipped after thirty days from the time of removal from the factory. The labor of production, it was said, had been performed before transportation began and thus before the goods became the subject of interstate commerce.

The fundamental proposition thus established is that the power over interstate commerce is not an absolute power of prohibition, but only one of regulation, and that the prior decisions in which prohibitory rules had been sustained rested upon the character of the particular subjects there involved. It was held that the authority over interstate commerce was to regulate such commerce and not to give Congress the power to control the states in the exercise of their police power over local trade and manufacture.

[Footnote 1: Charles E. Hughes, President's Address, Printed in Year Book of New York State Bar Association, Vol. XLII, p. 227 et seq.]

Congress did not receive this decision of the Supreme Court submissively. On the contrary, plans were laid to nullify it. The effort to legislate on child labor under cover of the power to regulate commerce having failed, recourse was had to the constitutional grant of power to lay taxes. Within six months after the decision of the Supreme Court declaring the act unconstitutional was announced, another statute similar in purpose and effect was enacted as part of a Federal Revenue Act.[1] This act provided for an additional tax of ten per cent. of the net profits received from the sale or distribution of the product of any establishment in which children under the age of fourteen years had been employed or permitted to work or children between the ages of fourteen and sixteen had been employed or permitted to work more than eight hours in any day or more than six days in any week or after the hour of 7 P.M. or before the hour of 6 A.M. during any portion of the taxable year. In other words, the law which had been declared void was substantially reënacted, with the substitution of a prohibitive tax for the clause prohibiting transportation in interstate commerce.

[Footnote 1: Revenue Act of 1918, Title XII.]

There was no pretense that this act was enacted for the purpose of raising revenue. The revenue feature was merely legislative camouflage. To quote the words of Justice Holmes in a recent case,[1] "Congress gave it the appearance of a taxing measure in order to give it a coating of constitutionality."

[Footnote 1: _United States v. Jin Fuey Moy_, 241 U.S., 394.]

The debate in the Senate was highly illuminating.[1] Its sponsors admitted that the measure was not expected or intended to produce revenue but was designed to regulate child labor and nullify the decision of the Supreme Court. Senators learned in the law conceded that if this purpose and effect were declared on the face of the act, or were necessarily inferable from its provisions, it must inevitably be declared unconstitutional. Reliance was placed, however, on the facts that the act was entitled "A bill to raise revenue," and that its provisions did not necessarily, on their face, belie this label. It was argued that the Supreme Court would be bound, under its own previous rulings, to treat the act as if it were what it purported on its face to be--a revenue measure--and to ignore common knowledge and senatorial admissions to the contrary. The measure passed the Senate by a substantial majority and was enacted as part of the revenue bill then under consideration, from which it has been carried forward into the present revenue law.

[Footnote 1: See "Congressional Record" of December 18, 1918.]

There the matter stands at this writing. A District Court judge has declared the new act unconstitutional but the question has not yet been passed upon by the Supreme Court.

It would be venturesome to attempt to predict what the Supreme Court will do about it. Many constitutional lawyers seem to think that Congress has succeeded in its attempt and that the act will be sustained. Certainly there are strong precedents pointing that way. Three in particular will be relied upon--the Veazie Bank case, the Oleomargarine case and the Narcotic Drug Act case.

In the Veazie Bank case[1] the Supreme Court upheld the validity of a so-called tax law whose purpose and effect were to suppress the circulation of notes of the state banks. In the Oleomargarine case[2] the Court upheld a tax whose purpose and effect were to suppress the manufacture and sale of oleomargarine artificially colored to look like butter. In the Narcotic Drug case[3] the Court upheld a tax imposed by the so-called Harrison Act[4] whose purpose was to regulate the sale and use of narcotic drugs. In each of these cases there could be no doubt in the mind of any intelligent man as to the motive for the enactment. The Court has uniformly maintained, however, that

when Congress acts within the limits of its constitutional authority, it is not the province of the judicial branch of the Government to question its motives.[5]

[Footnote 1: _Veazie Bank v. Fenno_, 8 Wall., 533, decided in 1870.]

[Footnote 2: _McCray v. United States_, 195 U.S., 27, decided in 1904.]

[Footnote 3: _United States v. Doremus_, 249 U.S., 86, decided in 1919.]

[Footnote 4: 38 Stat., 785.]

[Footnote 5: _Smith v. Kansas City Title Company_, 255 U.S., 180, 210.]

In the Narcotic Drug Act case[1] the Court held

While Congress may not exert authority which is wholly reserved to the states, the power conferred by the Constitution to levy excise taxes, uniform throughout the United States, is to be exercised at the discretion of Congress; and, where the provisions of the law enacted have some reasonable relation to this power, the fact that they may have been impelled by a motive, or may accomplish a purpose, other than the raising of revenue, cannot invalidate them; nor can the fact that they affect the conduct of a business which is subject to regulation by the state police power.

[Footnote 1: _United States v. Doremus_, 249 U.S., 86.]

It is true that, while the Supreme Court may not question congressional motives, it cannot escape the obligation to construe a statute in the light of its true nature and effect. The Court has said:[1]

The direct and necessary result of a statute must be taken into consideration when deciding as to its validity, even if that result is not in so many words either enacted or distinctly provided for. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect.

[Footnote 1: _Collins v. New Hampshire_, 171 U.S., 30.]

As already indicated, however, the nature and effect of a statute must ordinarily be determined from the form and contents of the act itself, rather than from outside sources, and the measure under consideration purports to be a revenue act.

In the light of the decisions and principles of interpretation to which reference has been made, the case against the constitutionality of the act may seem well-nigh hopeless. The fact remains, however, that Congress has not met the fundamental objection raised by the Supreme Court. The Court declared the former act unconstitutional, not only because it transcended the power of Congress under the particular provision of the Constitution then invoked, viz., the Commerce Clause, but also on the broad ground of state rights, because it "exerts a power as to a purely local matter to which the federal authority does not extend." It is difficult to see how this objection is obviated by reënacting the act as a revenue measure. Under the circumstances perhaps the apprehensive foes of federal encroachment should withhold their lamentations until the Supreme Court has spoken again.[1]

[Footnote 1: Since this chapter was put into print the Court has spoken. In _Bailey v. The Drexel Furniture Co._ (decided May 15, 1922) the Child Labor Tax Law was pronounced unconstitutional. The Court, while conceding that it must interpret the intent and meaning of Congress from the language of the act, held that the act on its face is an attempt to regulate matters of state concern by the use of a so-called tax as a penalty. The opinion of the Court, written by Chief Justice Taft, is an emphatic assertion of the duty and function of the Court to preserve the constitutional equilibrium between nation and states.]

VII

STATE RIGHTS AND THE SUPREME COURT

A century ago the United States Supreme Court was the bulwark of national power against the assaults and pretensions of the states. To-day it is the defender of the states against the encroachments of national power. Let no one suppose, however, that this is because the Court itself has faced about. On our revolving planet a ship may be sailing toward the sun at sunrise and away from the sun in the afternoon without having changed its course. The Supreme Court has been the most consistent factor in our governmental scheme. While there have been differences of viewpoint between liberal constructionists and strict constructionists among its members, the Court on the whole has steered a fairly straight course. What has really altered is the environment in which the Court moves. The earth has been turning on its axis. The frame of mind of the people who compose states and nation has changed.

At the outset (to cling for a moment to our nautical metaphor) the Court was obliged to put forth on an unknown sea. Its sailing orders under the new Constitution were unique. Precedents, those charts and lighthouses of the judicial mariner, were lacking. Progress was tentative and groping. Little wonder therefore that at first the business of the Court was meager and membership in its body seemed less attractive than membership in the judiciary of a state. Robert Hanson Harrison, one of President Washington's original appointees to the Supreme bench, declined to serve, preferring to accept a state judicial office. John Rutledge, another of the original appointees, resigned after a few months, preferring the position of Chancellor of his native state to which he had been chosen. John Jay, the first Chief Justice, resigned to become Governor of New York, and later declined a reappointment as Chief Justice in words indicating entire lack of faith in the powers and future of the Court.

Nevertheless, the first period of the Court was by no means barren of achievement. A beginning was made. The supremacy of the national authority under the new Constitution was asserted. So stoutly indeed was it maintained in the memorable case of _Chisholm v. Georgia_,[1] that the country was thrown into a ferment. The Court had entertained a suit against a sovereign state by a private citizen of another state and rendered a decision in favor of the private citizen. The legislature of the sovereign state concerned (Georgia) responded by a statute denouncing the penalty of death against anyone who should presume to enforce any process upon the judgment within its jurisdiction. The matter was taken up in Congress and resulted in the proposal, and subsequent ratification by the states, of a constitutional amendment designed to prevent such actions in future.[2] It has been the fashion to speak of this incident as a striking example of the recall of judicial decisions. Such indeed it was. The decision did not suit the popular frame of mind and was promptly overruled in the method prescribed by the Constitution. It went a long way, however, toward establishing the Supreme Court as a power to be reckoned with on the side of national supremacy and authority.

[Footnote 1: 2 Dallas, 419, decided in 1793.]

[Footnote 2: Amendment XI.]

Three years later the Court again took occasion to assert the national supremacy in no uncertain fashion. The case was _Ware v. Hylton_[1] and the Court laid down the proposition that a treaty of the Federal Government (in this case the treaty of peace with Great Britain) nullified previous state laws dealing with the subject matter. It is an interesting circumstance that one of the counsel on the losing side in this case was John Marshall of Virginia, and that this was the only case he ever argued before the tribunal through which he was destined to play so momentous a part in history.

[Footnote 1: 3 Dallas, 199, decided in 1796.]