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1916. (39 Stat. 756.) A stock dividend

* * is a tax on capital increase and not on income, and, to be valid under the Constitution, such taxes must be apportioned according to population in the several States.

Knickerbocker Ice Co. v. Stewart (253 U. S. 149). Act of October 6, 1917. (40 Stat. 395.) The attempted amendment (making State law applicable in maritime cases) is unconstitutional as being a delegation of the legislative power of Congress and as defeating the purpose of the Constitution respecting the harmony and uniformity of the maritime law.

Evans v. Gore (253 U. S. 245). Act of February 24, 1919. (40 Stat. 1062.) A tax upon the net income of a United States district judge operates to diminish his compensation in violation of the Constitution.

United States v. Cohen Grocery Co. (255 U. S. 81). Act of August 10, 1917. (40 Stat. 276.) A provision imposing penalty for making “any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" is repugnant to the fifth and sixth amendments to the Constitution. Similarly decided in Tedrow v. Lewis & Son Co. (255 U. S. 98); Kennington v. Palmer (255 U. S. 100); Kinnane v. Detroit Creamery Co. (255 U. S. 102); Weed and Co. v. Lockwood (255 U. S. 104); Willard Co. v. Palmer (255 U. S. 106); Oglesby Grocery Co. v. United States (255 U. S. 108); Weeds (Inc.) v. United States (255 U. S. 108).

Newberry v. United States (256 U.S. 232). Act of June 25. 1910. (36 Stat. 822.) Federal regulation of expenditures in election of Members of Congress is a usurpation of State rights.

III To illustrate the process of judicial interpretation of the constitution by the United States court, the following table of cases interpreting different parts of a single sentence is presented. This table includes only a small proportion of the total number of cases bearing on the text in question.

The original words of the constitution are as follows: "The Congress shall have power : :

"To regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

The particular part which is subject to interpretation in the following list of cases is: "The Congress shall have power to regulate commerce among the several States."

Interstate and Foreign Commerce. 9 Wh., Gibbons v. Ogden,

means intercourse

between the states and with foreign

countries. Subjects of Commerce.

7 How. 283, Passenger Cases, passengers are: 10 How. 410, Ducat v. Chicago, passengers are: 135 U. S. 100, Leisy v. Hardin, all commodities ordi

narily exchanged

are: 8 Wall. 168, Paul v. Va.,

policies of insur

ance are not: Things become Subjects of Commerce when 116 U. S. 517, Coe v. Errol,

the journey to

another State has And remain Subjects of Commerce actually commenced.

95 U. S. 485, Hall v. DeCuir,
12 Wh. 419, Brown v. Md., during the journey;

until sale by the 13 Wall. 29, Low v. Austin,

or breaking of the

original package in
which they were

The Federal Power over the Subjects of Commerce gives Con

gress the right to

12 Pet. 72, U. S. v. Coombs,

punish any interfer

ence, or willful injury to goods in transitu.

9 How. 560, U. S. v. Marigold, prohibit the impor

tation of a subject

of commerce. 112 U. S. 580, Hard-money Cases, tax immigrants.

The Federal Power over the Means of Commercial Intercourse,

derived from the Power over Commerce, gives Congress the right to

18 How. 421, Pa. v. Wheeling establish or authorBrdg.;

ize a bridge which 10 Wall. 454, The Clinton Brdg.; obstructs the navi109 U. S. 385, Miller v. Mayer; gation of a river; or 105 U. S. 470, Bridge Co. v. U. S.; abate such a

structure. 6 Wall. 646, White's Bank v. regulate liens on Smith;

vessels. 7 Pet. 324, Peyroux v. Howard, 10 Wall. 557, The Daniel Ball, regulate a boat carry

ing interstate freight between two points

in the same state. 102 U. S. 541, Lord v. Steamship regulate the liability Co.,

of the owners of a boat plying the high seas between two points in the same

state. 96 U. S. 1, Pensacola Tel Co. v. establish a telegraph W. U. Tel. Co.,

company. 127 U. S. 1, Cal. v. Cal. Pac. R. R., establish a railroad 196 U. S. 369, Wis. v. Duluth, improve harbors,

rivers, etc. 135 U. S. 641, Cherokee Nation grant to a corporation v. Southern Kansas Railroad Co. engaged in interstate

commerce the right of eminent domain through a state.

(From "The Federal Power over Commerce and its Effect on

State Action," W. D. Lewis, p. 125 ff.)


A single example from one of these decisions will suffice to illustrate the method of interpretation.

Extract from decision, 1824, written by Chief Justice Marshall in the case of Gibbons v. Ogden. This opinion “is the basis of all subsequent decisions construing the commerce clause, and is the recognized source of authority.”

The words are: "Congress shall have power to regulate commerce with foreign nations, and among the several states and with the Indian tribes.” The subject to be regulated is commerce: and our constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce undoubtedly is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter.

If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word "commerce" to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government and must have been contemplated in forming it. The convention must have used the word in that sense; because all have understood it in that sense, and the attempt to restrict it comes too late.

The universally acknowledged power of the government to impose embargoes, must also be considered as showing that all America is united in that construction which comprehends navigation in the word "commerce.” Gentlemen have said, in argument, that this is a branch of the war-making power, and that an embargo is an instrument of war, not a regulation of trade. That it may be, and often is, used as an instrument of war, cannot be denied. An embargo may be imposed for the purpose of facilitating the equipment or manning of a fleet, or for the purpose of concealing the progress of an expedition preparing to sail from a particular port. In these, and in similar cases, it is a military instrument, and partakes of the nature of war. But all embargoes are not of this description. They are sometimes resorted to without a view to war, and with a single view to commerce. In such a case, an embargo is no more a war measure than a merchantman is a ship of war, because both are vessels which navigate the ocean with sails and seamen. When Congress imposed that embargo which, for a time, engaged the attention of every man in the United States, the avowed object of the law was the protection of commerce, and the avoiding of war. By its friends and its enemies it was treated as a commercial, not as a war measure. ... The word used in the constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning; and a power to regulate navigation is as expressly granted as if that term had been added to the word “commerce.”

To what commerce does this power extend? The constitution informs us, to commerce "with foreign nations, and among the several states, and with the Indian tribes." It has, we believe, been universally admitted that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other, to which this power does not extend. It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term. If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain, intelligible cause which alters it.

The subject to which the power is next applied, is to com

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