tstanding feature of government under the
Constitution, would be at an end. In the First Employers' Liability
Cases, (Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908)), the
majority of the Court, speaking through Justice White, gave special
attention to the Government's argument that though the act, in terms,
governed the liability of "every" interstate carrier to "any" of its
employees, whether engaged in interstate commerce or not when the
liability fell, it was none the less constitutional "because one who
engaged in interstate commerce thereby submits all his business concerns
to the regulating power of Congress." Justice White answered: "To state
the proposition is to refute it. It assumes that because one engages in
interstate commerce he thereby endows Congress with power not delegated
to it by the Constitution; in other words, with the right to legislate
concerning matters of purely State concern. It rests upon the conception
that the Constitution destroyed that freedom of commerce which it was
its purpose to preserve, since it treats the right to engage in
interstate commerce as a privilege which cannot be availed of except
upon such conditions as Congress may prescribe, even although the
conditions would be otherwise beyond the power of Congress. It is
apparent that if the contention were well founded it would extend the
power of Congress to every conceivable subject, however inherently
local, would obliterate all the limitations of power imposed by the
Constitution, and would destroy the authority of the States as to all
conceivable matters which from the beginning have been, and must
continue to be, under their control so long as the Constitution
endures." Ibid. 502-503. _See also_ Justice White's dissenting opinion,
for himself, Chief Justice Fuller, and Justices Peckham and Holmes, in
Northern Securities Co. _v._ United States, 193 U.S. 197, 396-397
(1904).

The Argument Asserting the Power

The thesis that the power to regulate commerce among the States
comprises in general the power to prohibit it turns on the proposition
stated by Marshall in his opinion in Gibbons _v._ Ogden, that this power
is vested "in Congress as absolutely as it would be in a single
government, having in its Constitution the same restrictions on the
exercise of the power as are found in the Constitution of the United
States. The wisdom and discretion of Congress," Marshall continued,
"their identity with the people, and