It is urged that...Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration since our decision in United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451, 132 A.L.R. 1430,12 sustaining the federal power to regulate production of goods for commerce except for the fact that this [Agricultural Act in contention regarding Wickard] Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes a definition of 'market' and its derivatives... - Wickard @ 119The two principal questions raised by the record in this case are, first, whether Congress has constitutional power to prohibit the shipment in interstate commerce of lumber manufactured by employees whose wages are less than a prescribed minimum or whose weekly hours of labor at that wage are greater than a prescribed maximum, and, second, whether it has power to prohibit the employment of workmen in the production of goods 'for interstate commerce' at other than prescribed wages and hours. A subsidiary question is whether in connection with such prohibitions Congress can require the employer subject to them to keep records showing the hours worked each day and week by each of his employees including those engaged 'in the production and manufacture of goods to wit, lumber, for 'interstate commerce." - Darby @ 108
The case comes here on assignments by the Government that the district court erred insofar as it held that Congress was without constitutional power to penalize the acts set forth in the indictment, and appellees seek to sustain the decision below on the grounds that the prohibition by Congress of those Acts is unauthorized by the commerce clause and is prohibited by the Fifth Amendment. The appeals statute limits our jurisdiction on this appeal to a review of the determination of the district court so far only as it is based on the validity or construction of the statute. United States v. Borden Co., 308 U.S. 188, 193 , 195 S., 60 S.Ct. 182, 185, 186, and cases cited. Hence we accept the district court's interpretation of the indictment and confine our decision to the validity and construction of the statute. - Darby @ 112
...The power to regulate commerce is the power 'to prescribe the rule by which commerce is to be governed'. Gibbons v. Ogden, 9 Wheat. 1, 196. It extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it. Reid v. Colorado, 187 U.S. 137 , 23 S.Ct. 92; Lottery Case (Champion v. Ames), 188 U.S. 321 , 23 S.Ct. 321; United States v. Delaware & Hudson Co., 213 U.S. 366 , 29 S.Ct. 527; Hoke v. United States, 227 U.S. 308 , 33 S.Ct. 281, 43 L.R.A.,N.S., 906, Ann.Cas.1913E, 905; Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311 , 37 S.Ct. 180, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; United States v. Hill, 248 U.S. 420 , 39 S.Ct. 143; McCormick & Co. v. Brown, 286 U.S. 131 , 52 S.Ct. 522, 87 A.L.R. 448. It is conceded that the power of Congress to prohibit transportation in interstate commerce includes noxious articles, Lottery Case, supra; Hipolite Egg Co. v. United States, 220 U.S. 45 , 31 S.Ct. 364; cf. Hoke v. United States, supra; stolen articles, Brooks v. United States, 267 U.S. 432 , 45 S.Ct. 345, 37 A.L.R. 1407; Kidnapped persons, Gooch v. United States, 297 U.S. 124 , 56 S.Ct. 395, and articles such as intoxicating liquor or convict made goods, traffic in which is forbidden or restricted by the laws of the state of destination. Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334 , 57 S.Ct. 277. - U.S. v. DARBY, 312 U.S. 100 (1941) @ 113
The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the constitution.' Gibbons v. Ogden, supra, 9 Wheat. 196. That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Hoke v. United States, supra.Not long after the decision of United States v. E. C. Knight Co., supra, Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that 'commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.' Swift & Co. v. United States, 196 U.S. 375, 398 , 25 S.Ct. 276, 280. It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation. 22 - Wickard @ 123Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the states of destination and is not prohibited unless by other Constitutional provisions. It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U.S. 510, 514 , 36 S.Ct. 190, 191; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 , 40 S.Ct. 106, 108; United States v. Carolene Products Co., 304 U.S. [312 U.S. 100, 115] 144, 147, 58 S.Ct. 778, 780; United States v. Appalachian Electric Power Co., 311 U.S. 377 , 61 S.Ct. 291, decided December 16, 1940.
...Whatever [Congress'] motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred [to it] by the Commerce Clause. Subject only to that limitation, presently to be considered, we conclude that the prohibition of the shipment interstate of goods produced under the forbidden substandard labor conditions is within the constitutional authority of Congress.
In the more than a century which has elapsed since the decision of Gibbons v. Ogden, these principles of constitutional interpretation have been so long and repeatedly recognized by this Court as applicable to the Commerce Clause, that there would be little occasion for repeating them now were it not for the decision of this Court twenty-two years ago in Hammer v. Dagenhart, 247 U.S. 251 , 38 S.Ct. 529, 3 A.L.R. 649, Ann.Cas.1918E, 724. In that case it was held by a bare majority of the Court over the powerful and now classic dissent of Mr. Justice Holmes setting forth the fundamental issues involved, [312 U.S. 100, 116] that Congress was without power to exclude the products of child labor from interstate commerce. The reasoning and conclusion of the Court's opinion there cannot be reconciled with the conclusion which we have reached, that the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce subject only to the specific prohibitions of the Constitution.
Hammer v. Dagenhart has not been followed. The distinction on which the decision was rested that Congressional power to prohibit interstate commerce is limited to articles which in themselves have some harmful or deleterious property-a distinction which was novel when made and unsupported by any provision of the Constitution-has long since been abandoned. Brooks v. United States, supra; Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra; Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419 , 58 S.Ct. 678, 115 A.L.R. 105; Mulford v. Smith, 307 U.S. 38 , 59 S.Ct. 648. The thesis of the opinion that the motive of the prohibition or its effect to control in some measure the use or production within the states of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Seven Cases v. United States, supra, 239 U.S. 514 , 36 S.Ct. 191; Hamilton v. Kentucky Distilleries & Warehouse Co., supra, 251 U.S. 156 , 40 S.Ct. 108; United States v. Carolene Products Co., supra, 304 U.S. 147 , 58 S.Ct. 780. And finally we have declared 'The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce'. United States v. Rock Royal Co-Operative, Inc., 307 U.S. 533, 569 , 59 S.Ct. 993, 1011.
The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles which have prevailed in the interpretation of the commerce clause both [312 U.S. 100, 117] before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. It should be and now is overruled. Darby @ 114-118
Your assertion is a fallacy, moreover, I see a strong argument being made that the very idea being espoused in Wickard has been the prevailing opinion regarding the power of the commerce clause for quite a long time prior to Wickard.
[Footnote 22] Northern Securities Co. v. United States, 193 U.S. 197 , 24 S.Ct. 436; Swift & Co. v. United States, supra; Loewe v. Lawlor, 208 U.S. 274 , 28 S.Ct. 301, 13 Ann.Cas. 815; Baltimore & O.R. Co. v. Interstate Commerce Commission, 221 U.S. 612 , 31 S.Ct. 621; Southern Ry. Co. v. United States, 222 U.S. 20 , 32 S.Ct. 2; Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co .), 223 U.S. 1 , 32 S.Ct. 169, 38 L.R.A.,N.S., 44; United States v. Patten, 226 U.S. 525 , 33 S.Ct. 141, 44 L.R.A.,N.S., 325.
Have you read the cases cited, and can you vouch for the validity of the logic used to arrive at those conclusions? Can you point to any documentation in the Federalist Papers or other writhings of the Founders that supports this? By your own admission, this philosophy renders Marshall's opinion in Ogden v Gibbons incoherent with regard to purely intrastate commerce in that it makes it non-existent for all practical purposes.
In Shreveport, the fact that they were a common carrier was the relevant issue, and the intrastate commerce activity was irrelevant. In applying it to Wickard they turned that upside down.