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Published online by Cambridge University Press: 05 August 2009
THE appearance in the last decade of such devices for social control as the Government Corporation and the Interstate Authority seems to suggest that the American Federal State system is passing through a critical stage in the course of social metamorphosis. It may be that the Federal State system, succeeding the Confederate system of states, approaches now a Regional system in the course of this metamorphosis. It is at any rate interesting that the Constitutional provision for agreements among the states with the consent of Congress—perhaps the most typical symbol of the old Confederation— is, with the breaking down of the Federal State system, coming strongly into vogue. Where the problems are regional in character and where the jurisdictional framework is not coincidental with the problem area (for example, the Colorado River Valley Problem Area) a regional authority created by concessions of jurisdiction on the part of the several states or on the part of the states and the Federal Government becomes necessary. These considerations determine the manner in which such regional or “sub-national” interests are to be set within “the framework of the American Nation”—a framework, the legal lines of which, in the words of the National Resources Committee, “aggravate the growing points of our national life”.
1 Report of the National Resources Committee (Washington, D. C.), 12, 1934, sec. 2, p. 2Google Scholar.
2 Corwin, Edward S., The Commerce Power Versus States Rights (Princelon University Press, Princeton, 1936)Google Scholar.
3 The Lockeian form found in this country over that of Rousseau, Vd. McLaughlin, A. C., A Constitutional History of the United States (D. Appleton-Centry Co., New York, 1936), p. 91 ff.Google Scholar
4 Aristotle and St. Thomas had taught that society is at once natural and conventional, that the conventions (constitution, laws, decrees, customs) were simply specific determinations of the principles of natural justice. Vd. Nicomachean Ethics, Bk. V; Summa Theologica II, I, 3rd No.
5 This is clearly verified by an examination of the proceedings of the Constitutional Convention. The great majority of members failed to see the natural sectional diversity as the true source of future trouble and were concerned with the preservation of state sovereignty. It was the latter concern which dictated the principle of the distribution of powers and the compromise on representation. Vd. McLaughlin, A. C., op. cit. pp. 171–172Google Scholar.
6 The Growth of the American Republic (Oxford University Press, New York, 1937), Vol. II, p. 31Google Scholar
7 Calhoun's argument was: (1) States do not originate in a compact; (2) but the United States originated in a compact; (3) therefore the United States is not a true state. Merriam, Vd. Charles E., History American Political Theories (Macmillan Co., New York, 1903), Ch. VIIGoogle Scholar.
8 9 Wheaton 1 at 188, 189.
9 Madison maintained that the interstate commerce power was not of the same nature or extent as the power over foreign commerce. This position is expressed by Madison in a letter to J. C. Cabell, February 13, 1829. Letters and Other Writings of James Madison (J. B. Lippincott & Co., Philadelphia, 1865), Vol. IV, pp. 14–15Google Scholar.
10 Sharp, Vd. Malcolm P., “Movement in Supreme Court Adjudication—a Study of Modified and Over-ruled Decisions,” Harvard Law Review, XLVI, p. 593 ff.Google Scholar
11 Sharp, Malcolm P., op. cit., p. 593Google Scholar.
12 9 Wheaton 1 at 210.
13 10 Wall 557 (1871)
14 Propeller Genesee Chief v. Filzhugh 12 How 143 (1851).
15 Ashwander et al. v. The Tennessee Valley Authority el al 8 Fed. Sup. 893; 297 U. S. 325.
16 283 U. S. 423.
17 The precarious use of the navigation power for upholding Federal control of electric power sites is exemplified by an interesting lower court decision in the New River Case, Appalachian Electric Power Company v. Members of the Federal Power Commission. In District Court of the United States for the Western District of Virginia, In Equity No. 494. The Attorney-General in an opinion requested and subsequently made public by President Hoover, expressed doubt as to the constitutionality of that portion of the Federal Water Power Act allowing the issuance of major licenses to electric power companies located on non-navigable waters which affect the navigability of other waters. The District Court upheld the Power Commission, but the case is by no means settled. The U. S. Circuit Court of Appeals has reversed the lower court order for lack of jurisdiction, and the U. S. Supreme Court has denied a writ of certiorari. The Appalachian Electric Power Company has threatened to go on with the construction of a $12,000,000 project, and the Federal Government has initiated a suit asking for an injunction to prohibit the construction. Annual Report, Federal Power Commission, 1935, p. 8.
18 Notice should be taken of the narrow issue before the Court and the Court's opinion that the Government was “without constitutional authority to acquire or dispose of such energy except as it comes into being in the operation of works constructed in the exercise of some power delegated to the United States.” 297 U. S. at 340. See the discussion of this case in Beard, Charles A. and Beard, Mary R., America in Mid-passage (Macmillan Co., New York, 1939), p. 271 ff.Google Scholar
19 “The Tennessee Valley Authority,” Information Service, Department of research and Education, Federal Council of the Church of Christ in America, XIV, Saturday, 06 22, 1935Google Scholar.
20 Farrand, , Records of the Federal Convention, II, 321, 322Google Scholar.
21 Utah Potter and Light Company v. Pfost, 286 U. S. 165. This construction of the power business as an interstate business was adopted by the power interests themselves in an attempt to escape regulation by the state of Utah. The Court did not adopt this view but presented it as defensible.
22 Utah Potter and Light Company v. Pfost 286 U. S. 165.
23 The consequences of the Madisonian view are well illustrated by a parallel problem presented by the states using their police power to set up interstate trade barriers in the form of inspection laws and taxation measures. Many authorities are now asking for interstate agreements or Congressional action to remove these obstructions to interstate commerce. These measures cast light on the Confederate sub-structure which the compact theory preserves in the Federal system.