That the power to regulate includes the power to prohibit the interstate transportation of at least certain classes of commodities has been placed beyond question by the decision of the court in Champion v. Ames.5

That Congress might prohibit commerce with the Indians had been decided in United States v. Holliday,6 but for the authority so to do resort did not have to be had exclusively to the Commerce Clause. So also the power of Congress to prohibit foreign commerce was early exercised in the so-called Embargo Acts of the time of the War of 1812, but here also a source of authority outside of the Commerce Clause could, if necessary, be found, namely, in the control of international relations. When, however, the question came as to prohibitions upon interstate commerce, the argument was made that "regulation" might be federally exercised only for the maintenance of perfect equality as to commercial rights among the States, and for the protection and encouragement, and not for the destruction of interstate trade. The authority of Congress to exclude diseased cattle, dangerous explosives, and goods and persons infected with disease, was conceded, for thereby, it was pointed out, legitimate interstate commerce was in effect protected from injury or destruction. But when the question arose as to the federal right to exclude lottery tickets from interstate transportation which, whatever might be the morality or expediency of the lottery to which they related, could not, in themselves, be considered a commodity, the transportation of which was attended with danger of injury to interstate trade, the point was urged that Congress was putting the Commerce Clause to a use which its framers had not intended. That, in other words the term "regulation" as employed in that clause could not properly be so defined as to include measures intended, and by necessary effect, calculated not to protect or encourage or regulate interstate commerce itself, but to check an evil the control of which by direct legislation was admittedly beyond the authority of Congress.7

4 Cf. Columbia Law Review, IV, 563, article "Is there a Federal Police Power? " by Paul Fuller.

5 188 U. S. 321; 23 Sup. Ct. Rep. 321; 47 L. ed. 492.

6 3 Wall. 407; 18 L. ed. 182.

To this argument, the Supreme Court in Champion v. Ames, replied that lotteries, though in earlier years considered innocuous, had come to be generally viewed as pestilential and as such had come under the ban of the law of most, if not all, of the States. Therefore, it was argued, the traffic in lottery tickets is one "which no one can be entitled to pursue as of right." " If." the court say. "a State, when considering legislation for the suppression of lotteries within its own limits may properly take into view the evils that inhere in the raising of money. in that mode, why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another ? " "We should hesitate long." the court go on to declare. "before adjudging that an evil of such appalling character, carried on through interstate commerce cannot be met and crushed by the only power competent to that end. We say competent to that end, because Congress alone has the power to occupy by legislation the whole field of interstate commerce."

It is to be admitted that the argument thus advanced is not only a weak one, but leads to a doctrine which, if not necessarily, at least possibly, may be employed to enable the Federal Governmerit to bring under its regulative control most of the manufacturing and other industries of the country. In so far as the argument is ex necessitate, or ab inconvenienti, it is plainly invalid. As the four dissenting justices in their opinion say, "the scope of the Commerce Clause of the Constitution cannot be enlarged because of present views of public interest." The argument of the majority is indeed scarcely distinguishable from what has been denominated the Wilson-Roosevelt doctrine of constitutional construction.8 And it is certainly improper to speak of lottery tickets as "polluting" interstate commerce. Their carriage cannot in any way be said to exercise an injurious effect upon other articles or persons transported.

7 Cf. American Law Review, Xxxvtii. 199; Political Science Quarterly, XII. 622: Michigan Law Review, I, 620.

As regards the argument that, if it be granted that the Federal Government has the power to prohibit the interstate transportation of lottery tickets, it will logically follow that Congress may arbitrarily exclude from interstate commerce any article or commodity it may see fit, and from whatever motive, the majority justices say: "It will be time enough to consider the constitutionality of such legislation when we must do so."

These justices go on to point out that the power of Congress to regulate commerce among the States though plenary is not arbitrary. They, however, add that the possible abuse of a power is not an argument against its existence.