Page:The Green Bag (1889–1914), Volume 18.pdf/106

 DEPARTMENTS OF GOVERNMENT which are possible only by the transmission of electricity, a condition of matter, by the physical mechanism of poles and lines stretching from State to State, are inter state commerce; that, therefore, an insur ance contract, which is nothing but the uniting of the minds of the parties, when they are in different States, a state of mind, must also be interstate commerce. That one is tangible and the other intangi ble is immaterial. They do not think that the policy has any special significance "any more than the wrapping paper on a parcel of merchandise constitutes the business of the merchant who sells the goods." . . . "In other words the insurance' is wrapped in the policy." That is to say, when the state of mind is done up in the policy ready for transmission to the other party, this particular state of mind which is thus "cabined, cribbed, and confined" becomes interstate commerce. This gets down to first principles and is sufficiently diaphanous. Because an insur ance agent recovered damages for a conspir acy to destroy his business on the ground that insurance was a commodity having value, they think it is "interstate commerce." If that is the test, then reputation may be interstate commerce, as it also has value. They contend that "Congress has the exclusive power to determine the articles which may be the subject of commerce." If this means anything, it means that the determination of Congress that "insurance" is "commerce" is conclusive upon the Courts. They rely upon the license cases and Leisy v. Harden (135 U.S., p. 125), where Mr. Chief Justice Fuller said, "We cannot hold that any articles which Congress recog nizes as subjects of interstate commerce are not such," segregated from their context, and as quoted, these extracts might be thought to sustain the contention that a declaration of Congress would conclusively make a business transaction interstate com merce, which without that declaration would

not be. Then the way to reach the question would be for Congress to declare first, that insurance was commerce and then proceed to legislate thereon constitutionally. A brief examination of those cases will show how utterly unwarranted such an inference is. They were cases passing upon the con stitutionality of State statutes, regulating the liquor traffic. The contention of the State was "that the State had the power to declare what should be an article of lawful commerce in the particular States, and having declared that ardent spirits and wines were deleterious to morals and health they ceased to be commercial commodities there, and that the police power then attached, and consequently the power of Congress could not interfere." . . . "The exclusive State power is made to rest, not on the fact of the state or condition of the article, nor that it is property usually pass ing by sale from hand to hand, but on the declaration found in the State laws and asserted as the State policy, that it shall be excluded from commerce. " (License Cases, 5 How., 600.) The question was, did the State have the exclusive right, under the police power, to invest an article of com merce with a quality that would deprive it of a commercial character. There was no doubt of its commercial character, inde pendent of the attempt of the State, as in that case the Court said, "That ardent spirits have been for ages and now are subjects of sale and lawful commerce, and that of a large class throughout a great portion of the civilized world, is not open to con troversy." It was solely with reference to this claim of exclusive power by the State, to outlaw a conceded article of commerce, that the Court held that, as to interstate commerce> "Congress had the exclusive power to deter mine the articles which may be the subjects of commerce." The remark in Leisy v. Harden was made under the same circum stances, and for precisely the same purpose. It was not intended to go any farther. The