PRESIDENT'S ANNUAL ADDRESS ity, or constitutes a usurpation of the powers of the states. Is it fairly within the spirit and purpose of some one of the grants of power? If so, then the action is justified. Otherwise he who supports it is not faithful to the Constitu tion. The recent claims for federal intervention in directions heretofore unheard of, are based upon the Commerce and Post Road provisions of the Constitution. As to the first, the Constitution says the Congress shall have power "to regulate commerce with foreign nations, and among the sev eral states, and with the Indian tribes." Is it within the spirit and purpose of that provision, that Congress may control the manufactures and all other productive in terests of the states, whether controlled by individuals, or corporations, the creations of the state? The answer of even a casual student of the Constitution and the condi tions surrounding its making, must be in the negative. Nor is authority lacking to support the proposition that production is not commerce (Kidd v. Pearson, 128 U. S., 1). And it is authority to regulate inter state commerce, not production within a state, that the Constitution confers upon Congress. An attempt, therefore, to deny to the harmless and useful products of a state entry into interstate commerce would violate the letter and spirit of the Consti tution. Such a proposition, I believe, would not survive the test of constitutionality in the Supreme Court. But the result of even an attempt on the part of Congress to seize the power of the states and deprive them of so large a measure of control would be most unfortunate. It is not my purpose to discuss the merits of the various claims for an increase of the federal power at the expense of the states. In the end such of them as are favorably acted upon by Congress, will have to pass the test of constitutionality before that greatest of all courts, the Supreme Court of the United States, and such statutes will
591
stand or fall as they show, or fail to show, fidelity to the spirit and purpose of the Constitution. The attempts, however, on the part of the federal government to despoil the states of the powers and functions belonging to them, will not tend to smoothness in the working of our dual scheme of government. Already it has had its effect. The indigna tion of the governing forces of many of the states is already aroused. It is shown in the legislation of the year. It had not a little to do, in my judgment, with the re cent conflict of judicial authority in North Carolina. From many quarters for the past two years have come the iteration and re-itera tion of the necessity for the assumption of federal control, based in the main on the feebleness or neglect of the state govern ments. The tide of speech and writing, if not of public sentiment, has been so strong that only here and there could be found a person who would attempt to stand against it. When he was found, his motives were discredited. So, when a judge in the performance of what he un doubtedly conceived to be his duty, re strained the operation of the legislation of a sovereign state, it seemed to some, doubt less, but the culmination of a scries of assaults by the federal government upon state governments. And yet we knew that, by the Fourteenth Amendment, the power has been confered upon the courts of the United States to set aside state statutes, and state constitutions as well, if they deprive any person of life, liberty or prop erty without due process of law. It was the understanding, I dare say, of the great majority of the people who voted for it, that the purpose of the amendment was to protect the negro. But it was not so limited in terms, for, indeed, its language embraces every person. And while that amendment remains a part of the Con stitution, the federal courts have juris diction to pass upon the question whether
