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Published online by Cambridge University Press: 07 November 2014
Federalism is not the least of interests shared by Canada and the United States. The elements of likeness and unlikeness exist in a balance that makes comparison profitable, although such comparison is allowed to remain implicit in the following survey of trends in the United States. To discuss in Canada the federalism of another country, of course, is to carry to Newcastle the ashes of its own coals, so greatly are all federal systems in debt to the monumental inquiry of the Royal Commission on Dominion-Provincial Relations. No similar focus yet enlightens the analysis of federal problems in the United States.
The temper of the United States is incorrigibly one of contrivance. The brevity of the constitution leaves it essentially unwritten. Of the obstacles of the formal amending process, of course, it can no longer quite be said, as Frank J. Goodnow put the matter in 1911, that “the constitution of the United States is, on account of the complicated procedure and the large majorities required, very difficult, if not impossible, of amendment under ordinary conditions.” After forty-three years without an amendment, six have been ratified since 1913. But the habit of relying on adjustment by interpretation is deep. The Supreme Court controversy in 1937 would have found the country at a loss to suggest just how it would amend the Constitution if the discussion as a practical matter had taken that turn. Students of government are sometimes irked by the atmosphere that takes for granted the necessity of advance by accommodation; mostly, however, their lives are spent on detailed inquiries that merely deepen the assumption. In recent years the impact of events abroad has challenged them to identify and to reaffirm the fundamentals of popular government. But the effect of these events has been to throw the United States back upon its constitutional tradition. The mood will last, it is admitted, only so long as there is movement and vigour. Never has the constitutional system of the United States been more fluent. Paradoxically, this condition encourages the survival of the old reliance on piecemeal adaptation.
1 Social Reform and the Constitution (New York, 1911), p. 4.Google Scholar
2 Democracy in the United States (ed. 7, Boston, 1882), vol. I, p. 200.Google Scholar
3 Introduction to the Study of the Law of the Constitution (London, 1915), “Introduction to the Eighth Edition,” p. lxxvi.Google Scholar
4 16 Peters (U.S.) 1.
5 Erie Railroad v. Tompkins, 304 U.S. 64.
6 In 1935, in Colgate v. Harvey, 296 U.S. 404, the Supreme Court, in striking down a tax of Vermont intended to encourage the loaning of money within the state, invoked the clause about “privileges and immunities of citizens of the United States,” which the majority of the Court believed to include the right “to engage in business, to transact any lawful business, or to make a lawful loan of money in any state other than that in which the citizen resides.” Apart from its immediate effect in curbing state autarchy, resuscitation of the clause was alarming because of the vagueness of its concepts. In 1940, in Madden v. Kentucky, 309 U.S. 83, 93, the Supreme Court found the 1935 decision “repugnant” to its later reasoning and declared: “As a consequence, Colgate v. Harvey must be and is overruled.”
7 16 Wallace 36.
8 Civil Rights Cases, 109 U.S. 3 (1883).
9 298 U.S. 587.
10 261 U.S. 525.
11 300 U.S. 379.
12 Gilbert v. Minnesota, 254 U.S. 325, 343 (1920).
13 Meyer v. Nebraska, 262 U.S. 390 (1923); Bartels v. Iowa, Pohl v. Ohio, 262 U.S. 404 (1923).
14 Pierce v. Society of Sisters, 268 U.S. 510.
15 268 U.S. 652, 666.
16 283 U.S. 697.
17 297 U.S. 233.
18 303 U.S. 444.
19 Schneider v. Irvington, Young v. California, Snyder v. Milwaukee, Nichols v. Massachusetts, 308 U.S. 147.
20 Cantwell v. Connecticut, 310 U.S. 296.
21 310 U.S. 88, 102.
22 Carlson v. California, 310 U.S. 106, 113.
23 61 S. Ct. 568 (Feb. 10, 1941), here applied to picketing by workers not immediately involved in the employer-employee dispute in question; with the Court remarking, “The interdependence of economic interest of all engaged in the same industry has become a commonplace.”
24 Milk Wagon Drivers' Union, etc. v. Meadowmoor Dairies, 61 S. Ct. 552.
25 299 U.S. 353.
26 301 U.S. 242.
27 In the same general stream belongs such a case under the equal protection clause of the Fourteenth Amendment as Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 352 (1938), which opened the law school of a state university to a Negro “in the absence of other and proper provision for his legal training within the state,” thus cautiously revising the doctrine of “separate but equal” facilities by which the Supreme Court had condoned “Jim Crowism” under state law. Even more emblematic of the Court's attitude have been cases since 1935, culminating in Smith v. Texas late in 1940, 61 S. Ct. 164, which have held that the requirements of the Fourteenth Amendment are not satisfied when Negroes do not in fact appear on juries in neighbourhoods where many Negroes are living. So, too, the Court has been significantly critical of forced confessions, as evidenced in Chambers v. Florida, 309 U.S. 227 (1940). This does not necessarily mean that the scruples of the Court always prevail at the circumference of justice where law enforcement goes on in practice.
28 307 U.S. 496 (1939).
29 310 U.S. 586. Justice Stone, dissenting, said of the law: “It does more than suppress freedom of speech and more than prohibit the free exercise of religion. … For by this law the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” Besides, he suggested, “there are other ways to teach loyalty and patriotism.”
30 St. Josephs Stockyards Co. v. U.S., 298 U.S. 38, 49 (1936), wherein Justice Roberts remarked: “It is said that we can retain judicial authority to examine the weight of the evidence when the question concerns the right of personal liberty. But if this be so, it is not because we are privileged to perform our judicial duty in that case and for reasons of convenience to disregard it in others.”
31 118 U.S. 557.
32 267 U.S. 307.
33 273 U.S. 93.
34 In this sequence, applicable to the control of intoxicating liquors, were In re Rahrer, 140 U.S. 545 (1891), Clark Distilling Company v. Western Maryland Railroad Company, 242 U.S. 311 (1917), and U.S. v. Hill, 248 U.S. 420 (1919); and regarding control of convict-made goods, Whitfield v. Ohio, 297 U.S. 431 (1936), and Kentucky Whip and Collar Company v. Illinois Central Railroad Company, 299 U.S. 334 (1937).
35 In the interplay of conflicting tendencies within the new majority of the Supreme Court it is possible to cite contrasting undertones from adjacent cases. On December 16, 1940, speaking for the majority of the Court (three dissenting) in Wisconsin v. J. C. Penney Company, 61 S. Ct. 246, 250, Justice Frankfurter spoke of the danger of “imprisoning the taxing power of the states” by formulas derived from the attempt to protect interstate commerce. On December 23, 1940, in Best and Company v. Maxwell, 61 S. Ct. 334, 336, Justice Reed, for the Court, said: “The freedom of commerce which allows the merchants of each state a regional or national market for their goods is not to be fettered by legislation, the actual effect of which is to discriminate in favor of intrastate businesses, whatever may be the ostensible reach of the language.”
36 The dynamics of capital migration are insufficiently understood. Many state and local inquiries are under way; most of these reflect sectional anxieties. What may be a significant analysis has started as the Industrial Location Study of the National Resources Planning Board.
37 The constitutionality of a long-standing Maine provision which forbids corporations, unless authorized by special legislative Act, to export from the state electric current generated by waterpower, has not been tested judicially. In 1923 a majority of the Supreme Court ruled against the direct attempt of West Virginia to restrict the export of natural gas (Pennsylvania v. West Virginia, 262 U.S. 553). Justices Holmes and Brandeis were among the three dissenting.
38 Foster Packing Company v. Haydel, 278 U.S. 1 (1928) invalidated the “Shrimp Act” of Louisiana on the ground that, although “the state might have retained the shrimp for consumption in the state,” the purpose of the Act was “to favor the canning of the meat and the manufacture of bran in Louisiana.”
39 For a partial bibliography, see U.S. Department of Commerce, Inquiry Reference Service, “Recent Publications on Barriers to Interstate Trade” (comp. by H. P. Warhurst of the Marketing Research Division of the Bureau of Foreign and Domestic Commerce, 12 18, 1940).Google Scholar In January, 1941, the informal interdepartmental Committee on Interstate Trade Barriers, under the auspices of the Department of Commerce, issued an “outline of certain factors involved in the study of the interstate trade barriers question,” including collaboration with the Council of State Governments.
40 The Significance of Sections in American History (New York, 1932).Google Scholar
41 See The Book of the States, published in Chicago annually by the Council, and State Government, its monthly magazine. For general background, see Graves, W. Brooke, Uniform State Action (Chapel Hill, 1934).Google Scholar
42 Creamer, D. D., Is Industry Decentralizing? (Philadelphia, London, 1935).Google Scholar
43 Schechter Poultry Corporation v. U.S., 295 U.S. 495 (1935).
44 Railroad Retirement Board v. Alton Railroad Company, 295 U.S. 330 (1935).
45 United States v. Butler, 297 U.S. 1 (1936).
46 Carter v. Carter Coal Company, 298 U.S. 238 (1936).
47 National Labor Relations Board v. Jones and Laughlin Steel Corporation, 301 U.S. 1.
48 U.S. v. F. W. Darby Lumber Co., et al., 61 S. Ct. 451. On the same day, in Opp Cotton Mills, Inc. v. Administrator of the Wage and Hour Division of the Department of Labor, 61 S. Ct. 545, the Supreme Court sustained the procedure by which the Administrator, on recommendation of industry committees appointed by him, can by order hasten for particular industries the movement toward the minimum of forty cents an hour provided in the Act as the eventual universal requirement. In the meantime the general minimum is thirty cents.
49 Hammer v. Dagenhart, 247 U.S. 251.
50 United States v. Appalachian Electric Power Company, 61 S. Ct. 291, 308.
51 Mulford v. Smith, 307 U.S. 38.
52 Sunshine Anthracite Coal Company v. Adkins, 310 U.S. 381. The Act as revised did not contain the labour provisions attacked in the earlier version.
53 Santa Cruz Fruit Packing Company v. National Labor Relations Board, 303 U.S. 453, 467.
54 Federal Trade Commission v. Bunte Brothers, 61 S. Ct. 580.
55 Clark, Jane P., The Rise of a New Federalism (New York, 1938)Google Scholar; see also the symposium on “Intergovernmental Relations in the United States” (Annals of American Academy of Political and Social Science, vol. 207, 01 1940).Google Scholar
56 See Andrews, J. B., “Labor Law Administration in North Carolina—A Study of Federal-state Cooperation” (American Labor Legislation Review, 09 1940, pp. 125–44).Google Scholar
57 Frothingham v. Mellon (argued and decided with Massachusetts v. Mellon), 262 U.S. 447 (1923).
58 Massachusetts v. Mellon, 262 U.S. 447 (1923).
59 Alabama Power Company v. Ickes, 302 U.S. 464; Duke Power Company v. Greenwood County, 302 U.S. 485.
60 Tennessee Electric Power Company v. Tennessee Valley Authority, 306 U.S. 118.
61 Carmichael v. Southern Coal and Coke Company, 301 U.S. 548; Steward Machine Company v. Davis, 301 U.S. 548; Helvering v. Davis, 301 U.S. 619.
62 On the basic Federal Aid Road Act of 1916, for example, against 283 favourable votes in the House of Representatives, only 81 negative votes were cast; but 59 of these were Republican and 20 were Democratic, while the urban concentration was striking. New York cast 22 votes in opposition, 4 in favour; Massachusetts, 15 in opposition, one in favour; New Jersey, 5 in opposition, one in favour. This, remember, was under the rising sun of the automobile industry, with easy transportation a matter of national faith and almost of public worship.
63 See, for example, the argument of Mayor LaGuardia of New York City before the New York Board of Trade as reported in the New York Times of Jan. 11, 1940, proposing tax-unification with a combination of sharing-by-source and draw-backs.
64 Outstanding in a rapidly increasing literature is Key, V. O. Jr., The Administration of Federal Grants to States (Chicago, 1937).Google Scholar
65 Austin F. Macdonald, who has done pioneer work in the analysis of federal aid in the United States, has summarized recent tendencies in “Federal Aid to the States: 1940 Model” (American Political Science Review, 04, 1940, vol. XXXIV, pp. 489–99).Google Scholar
66 Macmahon, Arthur, Millett, J. D., and Ogden, Gladys, The Administration of Federal Work Relief (Chicago, 1941).Google Scholar
67 The problem of narrowly specified grants as it arises within functional fields was illustrated in the Report of the Presidentially-appointed Advisory Committee on Education, which was transmitted to Congress on February 23, 1938.
68 An unusually thoughtful and suggestive interpretation of a phase of the problem is Withers, William, Financing Economic Security in the United States (New York, 1939).Google Scholar
69 Atkinson, R. C., in The Federal Role in Unemployment Compensation Administration (Washington, 1941; a report prepared for the Committee on Social Security of the Social Science Research Council), p. 183 Google Scholar, concludes: “The very measures required to remedy the defects and close the gaps in a federal-state system would tend for the most part to render it more complicated and cumbersome. The needs of the country could be served better and more efficiently by a single national system of unemployment insurance, with unified administration of payroll taxes and a largely unified system of wage reporting and record keeping for unemployment insurance and old-age and survivors insurance.”