Page:Harvard Law Review Volume 32.djvu/88

54 Whether a regulation governs the transportation of goods across state Unes would seem to depend upon the places where the journey begins and ends, and not at all upon the character of the goods or the evil resulting therefrom. Evil may induce the enactment of a regulation. If despite the presumption in favor of constitutionality there is no conceivable relation between the regulation of interstate commerce and a proper public purpose, it would be confiscatory, hence invalid as taking away property without due process of law contrary to the Fifth Amendment. Such, no doubt, would be the case if Congress should arbitrarily prohibit the movement of sound wheat across state Unes; but the regulation would not cease to be one of interstate commerce. Its invalidity would be because of the due-process clause of the Fifth Amendment; just as a state law prohibiting the intrastate transportation of sound wheat would be invalid not as a regulation of interstate commerce but because violating the due-process clause of the Fourteenth Amendment. Questions of due process, however, were not considered in the Husen, Leisy, and Schollenberger cases, supra, and the Child Labor Case. The only question was as to what constitutes a regulation of interstate commerce.

Let us apply the principle of law that Congress may prohibit interstate transportation if evil results. Whether evil results or not is essentially a question of fact. So far as the validity of the statute depends upon the answer, the judgment of Congress is entitled to great if not conclusive weight. Congress had found that evil did result from the interstate movement of child-made goods. The four dissenting justices were of like opinion. Whether or not commodities work evil is a matter largely of opinion, as to which the judgment of the community changes. In Leisy v. Hardin liquor was thought legitimate. Not many years ago lotteries were a proper method of endowing schools and churches. Evil is as evil does. Healthy persons may be barred from states because their mere presence by reason of the prevalence of disease makes an added source of danger. Compagnie Française v. Louisiana Board of Health. As was said by Mr. Justice McKenna in Rast v. Van Deman,