The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
57. But in the exercise of this power to regulate commerce Congress has
legislated “to protect trade and commerce against unlawful restraints
and monopolies.”[144] Individuals, or corporations under State laws,
engaged in business, in so far as they are contracts, combinations
in the form of trusts, or otherwise, or conspiracies in restraint of
trade or commerce among the several States are illegal. The test here
is, Are such combinations in restraint of commerce among the several
States, or with foreign nations, or with the Indian tribes? If any such
combination be in restraint of commerce completely internal in a State,
it does not fall within the jurisdiction of the United States. If
illegal, it is illegal by State laws.[145] Thus a combination that is
engaged in manufacturing is within the jurisdiction of the police power
of the State, not within the jurisdiction given by the commerce clause
of the Constitution.[146] The regulation of manufactures is not the
regulation of commerce. A monopoly of manufacturing is not necessarily
a monopoly of commerce among the several States. In other words,
manufacturing is not commerce. The Constitution does not give Congress
power to regulate manufactures. However, as soon as the article
manufactured becomes an article of commerce among the several States,
then it is subject to regulation by Congress.
58. As soon as the article is manufactured it is subject to the law of
the State; the moment the article commences its final movement from the
State of its origin, that moment it is an article of commerce as that
word is used in the Constitution, and is within the jurisdiction of
Congress.[147]
Manufacture is transformation,—the fashioning of raw materials
into a change of form for use. The functions of commerce are
different. The buying and selling and the transportation incidental
thereto constitute commerce; and the regulation of commerce in
the constitutional sense, embraces the regulation at least of
such transportation. If it be held that the term includes the
regulation of all such manufactures as are intended to be the
subjects of commercial transactions in the future, it is impossible
to deny that it would also include all productive industries that
contemplate the same thing. The result would be that Congress
would be invested, to the exclusion of the States, with the
power to regulate, not only manufactures, but also agriculture,
horticulture, stock-raising, domestic fisheries, mining,—in short,
every branch of human industry.[148]
Assumption of power such as this by Congress would conflict with the
residuary powers of the States,—powers over intrastate commerce, and
that vast authority possessed by the States and known as their police
powers. Were such authority possessed and exercised by Congress, the
State governments would be paralyzed and between the States and the
United States there would be endless conflict.
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