Document Type

Response or Comment

Publication Date

1918

Abstract

The decision in the Child Labor Law case, Hammer v. Dagenhart, - U. S. -, 62 L. ed. -, decided June 3, 1918, would have caused much less surprise twenty-five years ago than it did when announced last June, for it is based upon two constitutional provisions concerning which the much wider and more varied experience of the last quarter century had developed theories, better defined and sounder than those of the earlier period. Those two provisions are the Tenth Amendment regarding the powers reserved to the States and the Commerce Clause. There has been an astonishing amount of faulty reasoning about the Tenth Amendment in its relation to Federal powers. Over and over again courts and writers have argued as if certain powers, or powers of certain kinds had been reserved to the States and therefore that the Federal Government could not possibly have or exercise powers that touched those fields; or, to put it otherwise, that the Federal Government could not exercise even its granted powers, as those over commerce or to make treaties, if such exercise would affect matters concerning which the States also possessed power. But this is a diametrically wrong way to approach the distribution of powers between the Federal and the State Governments. Certain powers have been given to the Federal Government. In the nature of the case, and as the Supreme Court has declared repeatedly, these powers, many. of them stated only in geenral outline, are and must be c apable of indefinite expansion, or more accurately their application is and must be to a changing and always increasing number of objects and situations.


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