Page:The Green Bag (1889–1914), Volume 18.pdf/103

 THE GREEN BAG tion, although in so doing the legislative enactment falls." The importance of this power is emphasized by the frequency with which it has been necessary to invoke it. In at least thirty-two cases in Federal and two hundred and twenty in State legis lation the United States Supreme Court has been obliged to declare legislative action void, as unconstitutional. In many more instances, for the same reason, State Courts have been obliged to set aside acts of State Legislatures. To this extent has Congress and the State Legislatures been numbered with those who have been "removing his neighbor's landmarks." That this great Court does not always agree, and at different times, when differ ently constituted, reaches opposite con clusions on constitutional questions, is true, as a number of notable instances show. Just now a determined effort is being made to procure Federal legislation, which can only be sustained unless the Court shall reverse itself. It is said that there is a widespread demand for Federal supervision of insur ance. That there is need of "a more uni form regulation of the vast insurance inter ests of the country, " and that we should have "national supervision of commercial interests which are clearly national in char acter," and that "the insurance business has outgrown in magnitude the possibility of adequate State supervision." It is insisted in many quarters that under the power vested in Congress, "To regulate commerce with foreign nations and among the States," that Congress should take charge of insurance, and especially life insurance. There is in our time an everincreasing tendency to extend the Federal jurisdiction at the expense of the State, and in the effort to include everything "that is in the heaven above, or that is in the earth beneath, or that is in the water under the earth, "this particular clause of the Constitu tion is in great danger of being overworked. The gross abuses in life insurance, which

have been disclosed by the recent investi gations, have very properly intensified the public demand for more effective regulation and control. As to which jurisdiction is best calculated to produce this result I shall not now discuss, though I am by no means certain that some of the men seek ing for Federal control are not anxious for less rather than more rigorous supervi sion. Whether they can be subjected to Federal control depends upon whether "insurance," because it happens to be done in different States by the same com pany or in a State other than that of its origin, is interstate commerce within the meaning of the Constitution. If decisions of the Federal and State Courts establish anything, such insurance is not interstate commerce. In Paul v. Virginia (75 U. S., 183) the Court passed upon a statute pro hibiting a fire insurance company from doing business in Virginia without comply ing with certain conditions, and the statute was attacked as a regulation of interstate commerce. It raised the specific question as to whether such insurance was interstate commerce. The Court said: "Issuing a policy of insurance is not a transaction of commerce. The policies are simple con tracts of indemnity against loss by fire, entered into between the corporations and the assured for a consideration paid by the latter. Those contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter, offered in the market as something having an existence and value independent of the parties to them. They are not com modities to be shipped or forwarded from one State to another, and then put up for sale. They are like other personal contracts between parties, which are completed by their signatures and the transfer of the con sideration. Such contracts are not inter state transactions, though the parties may be domiciled in different States." . . "They do not constitute a part of the com merce between States any more than a.