James W. Pfister: Holmes’ dissent in Hammer v. Dagenhart

James W. Pfister
James W. Pfister

The Commerce Clause of the Constitution (Article I, Section 8, Clause 3), regarding interstate commerce has been the engine of congressional regulation of society. The issue here is the role of the judiciary in the federal-state relationship when Congress tries to regulate an intrastate subject. Should the courts balance the interests of the two levels of government or follow the John Marshall rule in Gibbons v. Ogden (1824) that once the power of Congress attaches, it is full and complete and acknowledges no limitations other than found in the Constitution? My thesis is that Oliver Wendell Holmes followed the Marshall approach in his dissent in Hammer v. Dagenhart, which was adopted by the Supreme Court in United States v. Darby (1941); this has given the federal level too much power over states; it’s time to do some balancing.

The issue was joined in Hammer v. Dagenhart (1918). William Rufus Day wrote the majority opinion in this 5-4 case and took a balancing approach; Oliver Wendell Holmes took the Marshall approach. In the case, Congress had passed a statute which prohibited the shipment of goods in interstate commerce made by child labor, as defined by Congress. Congress was trying to indirectly regulate child labor, an intrastate issue, by its power to prohibit.

Day’s reasoning was that there was nothing nefarious about the goods themselves. He stated: “…the production of articles, intended for interstate commerce, is a matter of local regulation.” Day used a logical-extension argument: If Congress had unlimited power here, “…all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the authority of the States…the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed.”

Thus, Day looked at the effect of the federal regulation on states and held that it interfered with the legitimate authority of states. This was a form of balancing the interests of the federal and state levels of government.

Holmes, in dissent, said that the Congress is given the power to regulate interstate commerce “in unqualified terms.” This includes the power to prohibit for any reason. Then, he presented the famous question: “…whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States…” He answered “no,” the power of Congress could not be diminished because of its effects on the internal affairs of the states.

The Marshall rule did state that Congress is limited by the Constitution. Is the Tenth Amendment such a limit? It states: “The powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” The classic answer was given by Harlan Friske Stone in United States v. Darby (1941): The 10th Amendment states “…but a truism that all is retained (by the states) which has not been surrendered.” Thus, what we have under the Holmes approach is a zero-sum game that as federal power expands, state power diminishes. Holmes’ approach was adopted in Darby. There have been more recent federal limits regarding coercing or commandeering states, but this is not balancing interests.

And Congress’s power has grown greatly over intrastate subjects by the affecting doctrine. Under the “others similarly situated” approach of Wickard v. Filburn (1942), something seemingly small can become a “substantial effect” on interstate commerce when repeated by others. Thus, in Gonzales v. Raich (2005), Congress could prohibit a person’s small cultivation of marijuana, allowed by California law, through a congressional law based on interstate commerce. As Justice Hugo Black said regarding a similar stretch of federal power: “This goes too far for me.”

Contrast the approach of the German Constitutional Court regarding federalism. Donald P. Kommers and Russell A. Miller write: the Constitutional Court has “…settled on a … pragmatic approach to the federal-state relationship in an effort to weigh and balance the vital interests of both state and national governments….” Balancing requires more judicial activism in the federal-state relationship to prevent a federal intrusion on state integrity, rather than merely determining the outer limits of Congressional power.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James W. Pfister: Holmes’ dissent in Hammer v. Dagenhart