Page:Harvard Law Review Volume 32.djvu/95

61 THE CHILD LABOR LAW CASE 6l continued existence of the state, a principle embodied in Art. II of the Amendments, as follows: "A well-regulated militia being necessary to the security of a free state." . . . It was argued in the recent Selective Draft Law cases that the power of the federal government to draft militiamen would, if exercised without Hmit, wipe out a vital state organization. The effect was not indirectly upon state policy, but upon the state governmental institution itself. The argument was held to be without merit.^^ The principle that local affairs are reserved to the states cuts across every grant of power to the federal government. It matters not whether the delegated power is one over interstate commerce or foreign commerce, or taxation or war. Congress cannot invade the province of the states any more by the exercise of one power than another. The Constitution is the fundamental law in time of war as well as of peace. Is then the recent Food and Fuel Act of August lo, 1917,^^ invalid, which empowers the agencies of the federal government to regulate directly and in detail the manu- facture and production of foods, feeds, fuel and other necessaries for the conduct of the war? It may be objected that in each of the cases cited the federal statute was a genuine exercise of authority delegated to meet a real federal problem; that so far as a matter is genuinely inter- state, the federal law governing it must prevail; but interstate commerce cannot be used as a pretext for the accomplishment of unlawful results. Let us assume, despite Veasie Bank v. Fenno^^ and McCray v. United States,^^ that a congressional enactment would be void which forbids a man to be transported in interstate commerce; who has been divorced according to some non-uniform statute; or who has refused to purchase Liberty Bonds; or who has manu- factured colored oleomargarine. The ground of invalidity would be not only violation of the Fifth Amendment but also that the evil sought to be cured has no conceivable connection with the interstate commerce regulated. "2 Selective Draft Cases, 245 U. S. 366 (1918). " q ^^^ ^^ gtat. 276. « 8 Wall. (U. S.) 533 (1869). » iQS U. S. 27 (1904).