Page:Harvard Law Review Volume 32.djvu/83

49 THE CHILD LABOR LAW CASE 49 possessed over them is such that the authority to prohibit is as to them but the exertion of the power to regulate. " In each of these instances the use of interstate transportation was necessary to the accompUshment of harmful results. In other words, although the power over interstate transportation was to regulate, that could only be accompHshed by prohibiting the use of the facilities of interstate commerce to effect the evil intended. "This element is wanting in the present case. The thing intended to be accomplished by this statute is the denial of the facilities of inter- state commerce to those manufacturers in the States who employ chil- dren within the prohibited ages. The act in its effect does not regulate transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the States. The goods shipped are of themselves harmless." Thus the doctrine is not that prohibition of the interstate move- ment of certain commodities can never be a regulation of inter- state commerce. Indeed, it is admitted that in some cases it may be. In the Lottery Case it had been broadly contended that the power to regulate did not include the power to prohibit certain articles; but as Mr. Justice Holmes stated in the Child Labor Case: "It would not be argued to-day that the power to regulate does not include the power to prohibit. Regulation means the prohibition of some- thing. ... At all events it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out." The doctrine of the majority opinion is that the prohibition of the interstate transportation of harmful commodities is a regula- tion of interstate commerce, whereas the prohibition of the inter- state transportation of harmless goods is not. Whether or not the regulation is of transportation across state lines, therefore, de- pends not upon whether the journey is from one state to another, but upon the character of the goods. The doctrine thus set forth, however, does not take into account, and the majority opinion did not discuss, the many cases in which prohibitions of interstate transportation of harmless commodities have been expressly held to be regulations of interstate commerce. Section 6 of the Sherman Anti-Trust Act of July, 1890," pro- " C. 647, 26 Stat. 209. < «