Maryland At The Supreme Court Bar
This article originally appeared at 44 Md. S.B.A. Proc. III (1939). Reprinted by permission of the Maryland State Bar Association.
ADDRESS BY HON. ROBERT H. JACKSON
Solicitor General of the United States
MARYLAND AT THE SUPREME COURT BAR
EVENING SESSION, June 23, 1939
THE PRESIDENT: Gentlemen, I am glad you are all here and we want to get our audience together for our speaker of the evening. There is nothing that holds us back at present except we are waiting for the appearance of Mr. Chapman, the Hamlet of our Association, who is now urging the members to assemble. It is all right. Hamlet has arrived.
The Convention will kindly come to order. Ladies and gentlemen, the distinguished gentleman who will address us this evening is a native of our sister State of Pennsylvania. He was country-born and country-reared and is a product of the public schools.
He has been a close student of history and economics, as well as of the law. He was admitted to practice at the New York Bar in 1913, and he continued to practice in Jamestown, New York. He has been an officer and general counsel for street railways and steam railroads, the Bank of Jamestown, and the Jamestown Telephone Corporation. He was appointed the general counsel to the Bureau of Internal Revenue, in 1934, Assistant Attorney-General of the United States in 1936, remaining there until 1938; since which time, following the elevation of the Honorable Stanley Reed to the United States Supreme Court, he was named the Solicitor General of the United States.
His subject is one which should appeal not only to the Legal fraternity but to all citizens of the State of Maryland. Ladies and gentlemen, I take great pleasure in presenting to you, the Honorable Robert H. Jackson.
HON. ROBERT H. JACKSON: Mr. President, and ladies and gentlemen. Had I known so many ladies were to accompany their husbands to this meeting, I should have chosen a topic much more interesting to ladies than the one I have. But I suppose that all of you by this time have become accustomed to the fact that wherever two or more lawyers gather together, there is only one subject up for discussion and that is the subject of law suits.
So I shall ask you to bear with us while we indulge our lawyerly trait of discussing law suits. We shall prefer to discuss our own rather than to discuss those which some other men may have tried.
In studying constitutional issues in the Supreme Court I became vaguely aware that Maryland has been one of the most frequent of its litigants and had participated in some of the most significant cases which have shaped our constitutional doctrine. I have taken this occasion to review the Supreme Court annals to see how well, by its record in litigation, Maryland has vindicated its designation as "The Free State".
I
Maryland sent five delegates to the Federal Convention. Of these delegates, two refused to sign the Constitution and one signed with reluctance. Luther Martin's address to the Maryland legislature on November 29, 1787, is the classic attack on the Constitution. The grant, he said, of "great and undefined powers" to the general government "paved the way for" the "favorite object" of some of the delegates, "the destruction of the state governments, and the introduction of monarchy."(n1) If my ears do not betray me, this language seems at least to have been paraphrazed during the recent senatorial primaries in this State. As "a free man, and a delegate of a free state," Martin said, he was forced to urge his country "to reject those chains which are forged for it."(n2) John Francis Mercer, later a Governor of this State, similarly refused to sign the Constitution. While Carroll and Jenifer had no hesitation, James McHenry signed the document with marked reluctance. Indeed, he drew up in his notes a formal statement of the reasons why he signed the document, although "opposed to many parts of the system."(n3)
After listening to Martin's bitter attack upon the Philadelphia proposals, the legislature called a convention. Only 6,000 of the 25,000 persons who met the rigid property qualifications voted for the delegates.(n4) Luther Martin and his supporters occupied several days of the convention in impassioned protest, while, as an admiring historian has said, "the friends to the Federal Government 'remained inflexibly silent.'"(n5) Perhaps in consequence of this discreet tactic, the convention on April 26 ratified the Constitution by a vote of 63 to l1.(n6)
II
When the controversy over the adoption of the Constitution ended, the division of opinion carried over into questions of its interpretation, and Maryland has frequently carried its views to the bar of the Supreme Court. As early as 1791 the State appeared before the Court.(n7) From that time until the last term, Maryland has appeared before the highest court in some 22 cases. Its record of success has been well above the average; it has won 14 and lost but 7 of its cases. All but two of its cases(n8) have involved the interpretation of the Federal Constitution or statutes.
Five of the cases dealt with the attempt of private persons to escape the force of state legislation because of limitations on the State's power thought to be found in the Constitution, but did not involve any conflict with the federal government or authority.(n9) Maryland won each of these.
When, however, the State has been seeking to oppose the powers or authority of the federal government its litigation record has been much less favorable. All but one(10) of the cases that it has lost before the highest court have been when the action of the State has been determined to encroach upon federal powers. The cases in which Maryland has opposed federal powers fall into two subdivisions: one, where the State has sought to deny the existence of federal powers, or the immunity of federal instrumentalities; the second, where the State has sought to extend its regulatory and tax powers into the field of interstate commerce. In each field the State of Maryland has contributed notably to the formulation of doctrines basic to our constitutional government.
III
Preeminent among the Constitutional problems facing the new federation was the scope of federal powers. Allied to this problem, but of less momentous significance, was the extent of the immunity of federal instrumentalities from state taxing and regulatory powers. In this field, one suit brought by Maryland was of epochal importance. I speak, of course, of McCulloch v. Maryland.(n11) Much that was decided in that case had clearly been foreshadowed. In United States v. Fisher,(n12) decided 14 years before, Marshall himself had settled that the federal powers included any action reasonably calculated to promote the great objectives which had been entrusted to the care of the national government, and that such legislation overrode conflicting state policies. But however much Marshall in McCulloch v. Maryland may have borrowed from the past, that case presented a combination of a wide, if not a militant, popular interest and a definitive expression of the federalist constitutional philosophy. As the march of history demonstrated the necessity of a strong central government, McCulloch's case has become the corner stone of the subsequent constitutional development of the nation.
The charter of the First Bank of the United States had been allowed to expire in 1811. But, in consequence of the War of 1812, re-establishment of a central banking institution seemed imperative and the Second Bank of the United States was chartered in 1816. It faced, of course, wide-spread Republican opposition, which its management did little to allay. The officials ran the Bank with an unhappy combination of recklessness and fraudulent self-seeking; in the Maryland branch alone, by fraud and defalcation there had been a loss of $1,700,000. Added to the sins which the Bank itself had committed, there was a severe business depression which the state banks and the public were ready to blame on the Bank of the United States.(n13) In consequence, 8 states by 1819 had enacted legislation designed to drive the Bank of the United States out of their borders, or seriously to hamper its operation. Indiana and Illinois, for example, forbade any branch of a foreign bank to be established in the state, while Tennessee, Kentucky and Ohio imposed annual taxes of $50,000 or $60,000 on each branch of the Bank of the United States. Maryland laid a heavy stamp tax on all notes issued by banks chartered outside the state, unless they chose to pay an annual tax of $15,000 for each branch.(n14)
When McCulloch v. Maryland was argued to the Court, it brought together a rarely distinguished group of advocates. Three of the six counsel came from Maryland, although two were appearing against their State.
Heading counsel for Maryland was Luther Martin, 75 years old and again the Attorney General of this State. "Brilliant, erratic and usually intoxicated"(n15), his vacillating character had swung again to states-rights convictions. His argument in the McCulloch case was the capstone of a brilliant and unremunerative career; when he was stricken the next year with a paralytic stroke, he was so impoverished that the Maryland legislature in 1822 enacted that every practicing attorney should pay an annual license fee of $5, the money to be paid to trustees for the use of Luther Martin.(n16) This was one of the earliest and, from a constitutional point of view, one of the most doubtful versions of the old age pension. Associated with Martin was Hopkinson of Pennsylvania, a powerfu1 advocate whose argument was not the less effective because it was contrary to his convictions,(n17) and Walter Jones of Washington.
Opposing these counsel, the Bank had secured a trio who, as Martin's brilliance dimmed, had between them the undisputed leadership of the bar. Daniel Webster opened the argument for the Bank, and was followed by William Pinkney and William Wirt, both of Maryland. Pinkney, foppish, nervous and impatient,(n18) was described in turn by John Marshall,(n19) Joseph Storey, (n20) and Reverdy Johnson(n21) as the greatest lawyer whom he had ever heard. He had been Attorney General of the United States but, in tribute to the charms of this State, resigned because the Act of 1814 required the Attorney General to live at Washington.(n22) Pinkney's only detractor was his fellow counsel, William Wirt, who, if we may judge by his letters, viewed his own career with something less than satisfaction because he could never be sure within himself that he did in truth outshine Pinkney, "that dam'd magician Glendower"(n23), who, Wirt once wrote, had "debauched the public taste".(n24) Wirt himself was commonly counted Pinkney's only rival. He was then Attorney General of the United States, and at the height of his power. To Wirt we are indebted for an exceptionally frank statement of the reasons which led him to take public office. He wrote his friend Judge Carr in 1818 that "my single motive for accepting the office [of Attorney General] was the calculation of being able to pursue my profession on a more advantageous ground- i.e., more money for less work. Ulterior objectives never were within my view and never can be."(n25) But whatever his motives in accepting the office, his name remains as that of one of our greatest Attorneys General.
The argument of McCulloch v. Maryland took nine days. Marshall's great opinion was handed down on the third day after the close of argument, and plainly must have been written before the case reached his court. It was constructed not so much by a judge as by a master statesman. The opinion was deliberately made as broad as possible; Marshall intended to reach far beyond his court room and to chart a path for the entire nation. United States v. Fisher, which reached well into the field of McCulloch's case, was not even cited; a man building for the future has no veneration for the past, even though the past be his own opinion. The Constitution, Marshall said, delegated only broad powers, and left to Congress the choice of the means by which to accomplish the great objectives of the national government. Of the clause authorizing the enactment of "all laws which shall be necessary and proper, for carrying into execution" the powers vested in the Congress, he said:(n26)
This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs * * *. It would have been an unwise attempt to provide, by immutable rules, for exigencies, which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
History has confirmed Marshall's magnificent statecraft with respect to the federal powers; it has been less kind to the tax immunity part of his opinion. Here his very strength becomes a weakness, for he is dealing with a limitation and not with a power. One who seeks to deal in broad terms with a limitation upon government, our constitutional history has shown, produces nothing but trouble for subsequent generations.
The nation's reactions to the opinion in McCulloch v. Maryland followed strictly party lines. The Federalist papers were enthusiastic in praise. The Democratic papers, on the other hand, were violent in their abuse. I quote as an example a Maryland paper, the Niles Register, probably the leading Democratic paper of the day, which said(n27) that the opinion was "a total frustration of the state-rights and the loss of the liberties of the nation * * *. Nothing but the tongue of an angel can convince us of its compatability with the Constitution." Perhaps the most unhappy aspect of the subsequent controversy was that Marshall himself rose to the defense of his opinion and under two pen names wrote a total of five articles in discursive defense of his judgment.(n28)
Whatever the contemporary protests, a nation was born in the decision of McCulloch v. Maryland. The central government was not to be a union of independent sovereignties, but thereafter was to be equipped, in Marshall's words, to deal with "the various crises of human affairs", "for ages to come".
Maryland's next venture on the field of federal immunity was more successful. In 1936 the State won the case of Baltimore National Bank v. State Tax Commission.(n29) There the Court read the permission to tax the stock of national banks as reaching to the preferred stock held by the Reconstruction Finance Corporation. The State's victory, however, was short lived, for Congress only six weeks after the opinion extended a retroactive exemption to the Reconstruction Finance Corporation from all state taxation on stock held by it.(n30)
In one case Maryland sought to regulate the activities of federal employees. Even though the regulation was non-discriminatory, Johnson v. Maryland(n31) held that the State could not require a truck driver for the Post Office Department to take out a driver's license.
In the three Soper cases, decided in 1926,(n32) four prohibition agents and their chauffeur were indicted in the circuit court for Harford County for murder, for obstructing justice and, in the case of one of them, for perjury. The Federal District Court granted a petition for removal and the State sought mandamus against the District Judge. Chief Justice Taft, writing for the Court, directed remand unless the petition for removal in the murder indictment were amended appropriately. The indictments for obstructing justice and perjury, based upon allegedly false or evasive answers in the course of the coroner's investigation, were directed to be remanded in any event. According to the Department of Justice files, the trial on the murder indictments proceeded in the Federal District Court and resulted in acquittal, whereupon the prosecutions for obstructing justice and perjury were abandoned in the State court.
Such has been Maryland's part in the development of the powers and the immunities of the national government. In 1819 the states stood for agrarian and popular interests, and against those of financial and business capital which, it was feared, and not without reason, would shortly dominate the central government. But today, in a united economy, if there is to be a government capable of functioning, it must be coextensive with those activities which it governs, and the needs to which it administers. Were it not for the principles of McCulloch v. Maryland we hardly could be a nation today, and what we have come to view as legitimate, if not inescapable, national functions may virtually all be traced to the doctrine established by the Court when it rejected Maryland's plea. This plea was offered in the name of states' rights, which then symbolized the hopes of the common people, the poor and the humble. By one of those paradoxes which gives our national history its vitality the Federalist victory in 1819 has made possible in this century the adoption of the same ideals by the national government.
IV
I turn now to the commerce clause, which may fairly be taken to represent the generating source of our union. As Chief Justice Marshall said:(n33)
The oppressed and degraded state of commerce, previous to the adoption of the constitution, can scarcely be forgotten. * * * It may be doubted, whether any of the evils proceeding from the feebleness of the federal government, contributed more to that great revolution which introduced the present system, than the deep and general conviction, that commerce ought to be regulated by Congress.
Within the broad framework of the simple clause empowering Congress "to regulate commerce with foreign nations, and among the several states," lay the destiny of the American nation. If it had been interpreted with a narrow view and a niggardly hand, the United States could hardly be more than a loose confederation of separate economies. If it had been interpreted so broadly as to forbid all intermeddling by states with interstate commerce or anything which affected it, the states today would be merely political subdivisions of a single nation.
Maryland has contributed one or more cases to most of the major constitutional doctrines which have developed with respect to the powers of the states in interstate commerce, and I shall discuss these principles in terms of the cases which have revolved about Maryland legislation.
1. The second case to arise under the commerce clause was Brown v. Maryland,(n34) involving a statute which imposed a license tax on persons selling imported goods at wholesale. Maryland was represented by two of its greatest counsel. Roger Taney had just been made Attorney General of the State, and he was supported by Reverdy Johnson, then a young man of only 31. Eleven days after the conclusion of the argument, Chief Justice Marshall delivered the opinion of the Court. He held that the prohibition upon the states to lay imposts or duties on imports reached beyond the particular act of importation, and protected the importer from being taxed upon the sale of the imported goods. So long at least as the goods remained in the original packages in which they were imported, the state regulatory and taxing powers could not reach them, under either the imports or the commerce clause.
It is interesting to note that the zeal of the advocate yielded to the "cold neutrality of the impartial judge" when Taney as Chief Justice twenty years later reconsidered and rejected his own plea at the bar. In the License Cases, he wrote about Brown v. Maryland as follows:
"I argued the case in behalf of the State, and endeavoured to maintain that the law of Maryland, * * * was valid and constitutional; and certainly I at that time persuaded myself that I was right, and thought the decision of the court restricted the powers of the State more than a sound construction of the constitution of the United States would warrant. But further and more mature reflection has convinced me that the rule laid down by the Supreme Court is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the United States on the one hand, and of the States on the other, and preventing collision between them. The question, I have already said, was a very difficult one for the judicial mind."
While much of Marshall's opinion has been rejected in subsequent decisions,(n35) the robust practicality with which Marshall disregarded legal or technical lines which might have been drawn across the process of importation, by insisting that the right of sale was indispensable to importation, has by and largely remained the commerce clause doctrine of the Court. And Marshall's basic rationale, that of delineating transactions which are said to occur in or outside of interstate commerce, and thus fixing the power of the state, is still a tool which the Court uses on occasion.(n36)
In Smith w. Maryland,(n37) the Court adopted a similar approach and held that the commerce clause did not forbid the State from seizing an oyster vessel declared forfeit under local law; the oysters, while under interstate waters, had not yet entered the channels of interstate commerce.
If there were only some sovereign talisman by which transactions occurring in interstate commerce could be distinguished from those which concern the states alone, it would be difficult to improve upon this first theory of the Court, announced in Brown v. Maryland. Unfortunately, the commerce clause, like the other general provisions of the Constitution, does not admit of mechanical application. Economic transactions do not occur so neatly, and the attempt to segregate transactions according as they are a part of or affect only intra-state or interstate commerce offers an illusory certainty. Chief Justice Marshall has no difficulty in recognizing that the interstate process of importation was meaningless unless accompanied by the privilege to sell at wholesale. But, by precisely the same token, the privilege to sell at wholesale is meaningless unless there also can be found the privilege to sell at retail, and the privilege to buy from the retailer is empty unless there is also the power to use the article.
2. The Court was not slow in groping for a more satisfactory principle by which to delineate the powers of the states under the commerce clause. The next great formula offered by the Court was the principle that, in the silence of Congress, the states were left free to regulate matters of local concern, although the transactions were a part of or affected interstate commerce, while they were powerless even in the absence of a conflict with federal legislation to deal with matters of national concern. The rule received its first deliberate formulation in Cooley v. Board of Wardens.(n38) It made one of its many subsequent appearances in Robbins v. Shelby Taxing District,(n39) where the Court held a statute requiring all drummers to take out a license, at a high fee, violative of the commerce clause because the interstate sale of goods was a matter of national concern. Also decided contemporaneously with the Robbins case was Corson v. Maryland.(n40) The Robbins case provoked a dissent, while the Maryland legislation was condemned by a unanimous Court, for it not only required a license of drummers selling goods by sample or offering goods for sale within the State, but it also measured the amount of the license by the amount of goods generally kept on hand, whether within or without the state.
3. The diminishing popularity of the formula of Cooley v. Board of Wardens was not due to the fact that the Court had produced a more satisfactory measuring rod. The formula was succeeded by one which has been more appealing to the Court than to the legislatures or the litigants who appear before it. The states, in the silence of Congress, could enact legislation which did not directly burden interstate commerce, but were powerless to enforce a law to which was applied the epithet that it constituted a direct instead of an indirect burden upon interstate commerce. By the time that Maryland appeared before the Supreme Court in Hendrick v. Maryland,(n41) the formula had become well established. The State, the Court held, could require temporary licenses and the payment of fees on the part of foreign cars temporarily in the State, even though such a movement of motor vehicles was unquestionably interstate commerce, because the license requirement was "but an exercise of the police power * * * and it does not constitute a direct and material burden on interstate commerce."
4. Brown v. Maryland involved a statute which discriminated against foreign commerce, because it required a wholesale license only for the sale of imported goods. Marshall, however, chose not to place his decision upon the grounds of discrimination, but rested it on the broad principle that any power to tax the sale of imported goods was incompatible with the exclusive control of importation which had been granted to the national government. He did, however, state that ever since Gibbons v. Ogden, "it has been almost beyond dispute that no state could direct a tax or regulation at interstate or foreign commerce alone". Since this pronouncement the Court has many times struck down state legislation which in terms or in fact discriminated against interstate commerce.(n42) To this history of litigation, Maryland has contributed one discriminatory statute. Ward vs. Maryland(n43) held a discriminatory tax upon non-resident traders to be invalid under the privileges and immunities clause of Article IV, while Justice Bradley concurred on the ground that it also worked discrimination against interstate commerce.
5. Another doctrine of the commerce clause is that which permits the state to erect regulations and to impose fees which form a part of its inspection laws. It is settled that these inspection laws must not discriminate against interstate commerce.(n44) But Maryland has the somewhat dubious distinction of being the only state whose inspection statute, one for the inspection of tobacco, measurably discriminated against interstate commerce and yet, in Turner v. Maryland,(n45) was sustained by the Court. Later, in Foote v. Maryland,(n46) a state fee for the inspection of oysters was declared to be invalid because much of the revenues went for activities other than the inspection of oysters.
6. Even though Maryland has not participated in the formulation of the most recent rule, it may be profitable to return to the formulae by which the Court distinguishes between those nondiscriminatory state regulations and taxes which in the silence of Congress may be imposed upon interstate transactions and those which may not. In Western Livestock v. Bureau,(n47) the Court in 1938 sustained a gross receipts tax upon the advertising of a magazine with interstate sales. The Court recognized that the tax was on an interstate transaction, and that gross receipts taxes had formerly been taken to be an unconstitutional burden when applied to interstate transactions. It said, however, that the tax was valid because the burden could not be duplicated by other states. A similar analysis has been applied in subsequent cases.(n48) It is too early to predict whether this formula will displace the other rules by which the Court determines the extent of state powers under the commerce clause. But these recent opinions show at least that the search is continuing for a satisfactory yet intelligible formula by which to guide the Court and the legislatures. I myself have a considerable hope that the most recent formula will prove generally satisfactory. The prohibitions against state taxes and state regulation are not based upon the thought that they are bad in themselves, but are simply in recognition of the fact that interstate commerce is subject to a large number of potential state taxes. The rule that the interstate business is to be protected against burdens which might be accumulated in one state and another therefore seems to me to be striking close to the bed-rock of the reasons for immunity. Mr. Justice Black, it is true, points out(n49) that, where other states do not in fact impose a comparable tax upon the interstate business, the result of protecting against a potential duplication of burdens is an actual discrimination against intrastate commerce. This, I recognize, is a perfectly valid criticism of the theory. But it may still be a legitimate price to pay for the certainty that interstate commerce will not be subject to mounting burdens.
Freedom of interstate trade is a basic postulate of our union. It is woven inextricably into the fabric of our economic life. Anything which has a tendency, however slight, to break up our national existence into half a hundred separate compartments runs counter to the main stream of American life and business. Men who cannot trade together in freedom cannot think together in harmony. Legislatures which apply policies of taxation and regulation designed to favor those of its own state cannot be expected to work in harmony either with the legislatures of other states or with the national government. It seems better, I think, that we should have rather severe restrictions upon the powers of states over interstate commerce than that we should risk the multiplication of burdens, simply because the trade is interstate, which might otherwise result.
I have been speaking tonight of Maryland as a litigant and, in the field of interstate commerce, with respect to Maryland legislation. This, of course, is only one facet of the complex problems of the commerce clause and of our federated government. The other aspect, the scope of federal powers over interstate commerce, I have left untouched. I wish, however, to note in passing that there have in recent terms come a series of decisions which seem to me to be returning the concept of interstate commerce, as the subject of federal legislation, to the limits marked out in the Constitution itself. A national government alive to its responsibilities cannot apply a dissecting knife to a continuous economic process which starts with the mine, the forest, or the farm, and ends with the ultimate consumer of the finished product. If Congress is empowered to control the interstate transactions in tobacco or coal, and if it is the judgment of that legislative body that control is necessary, it seems to me impossible that enlightened constitutional interpretation could invalidate the congressional legislation because control of the interstate marketing required control of the intra-state sales and reacted upon production itself. The Court in its decisions of the past term or two has recognized that the very continuity in economic process is an argument not against the exercise of federal power over the interstate transaction but for its extension into the surrounding transactions.(n50)
This conflict of constitutional opinion in which Maryland has so often participated is a part of the process of evolution of the United States from a rather loose league of states to a nation. When the Constitutional Convention overstepped its instruction and, instead of proposing amendments to the old Articles of Confederation, brought forth a new Constitution they gave us only an institutional framework and a few general powers and limitations. They put into the approximately forty-five hundred words of the original instrument an outline of a federated democracy and left time and experience to fill in much of detail. Federation was an almost untried technique for retaining independence of localities on the one hand and uniting common strength for common ends on the other. It is the only pattern so far devised, either by political philosophers or practicing statesmen, to achieve both purposes. But the weakness of a federation, fatal if extreme, is the lack of cooperation, the conflict and disagreement of the parts. Without a Supreme Court, or a similar authority with power to resolve these differences, it is difficult to see how the real values of federation can be preserved. We would drift either to unitary government and the destruction of all local authority, if the central government were strong and aggressive, or we would drift to dissolution and anarchy if the central government were weak. The balance between local and central authority has been and must continue to be entrusted to preservation by the Supreme Court. Opinion as to where the exact line should be drawn has varied from time to time, but looking back over the years the variance has been in emphasis rather than in principle.
The great service rendered by Maryland to the development of our federation has been in advocating its local views and interests ably and courageously, and in unhesitating acceptance of the judgment of the Court. Thus has it, while submissive to its covenant of federation, well vindicated its designation as "The Free State".
MR. SYLVAN HAYES LAUCHHEIMER: Mr. President, I move that our hearty thanks be tendered the Solicitor General of the United States for his very interesting address.
This motion, duly seconded, was then put to a vote, and the audience arising and applauding, passed the resolution.
THE PRESIDENT: Now, ladies, please listen to the Secretary. He has a very important announcement to make to you.
THE SECRETARY: Mr. President, immediately after this meeting is adjourned, there will be held a very informal but cordial reception in honor of our ladies, and the place is just outside of the door of this room.
THE PRESIDENT: The meeting is now adjourned until tomorrow morning at ten o'clock.
n1) Elliot, Debates on the Federal Constitution, I , 351.
n2) Elliot, I, 388-389.
n3) Farrand, Records of the Federal Convention, II, 649, 650.
n4) Beard, An Economic Interpretation of the Constitution of the United States, 247-248.
n5) Bancroft, History of the Constitution of the United States, II, 283.
n6) Beard, 234.
n7) Van Stophorst v. Maryland, 2 Dall. 401 (commission obtained to examine foreign witnesses).
n8) McAlester v. Maryland, 114 U.S. 598 (1884; judgment creditor cannot levy on the state’s security); Maryland v. West Virginia, 217 U.S. 1 (1910; boundary line litigation).
n9) Philadelphia, etc., R. Co. v. Maryland, 10 How. 376 (1851; tax on consolidated railroads, one of which was tax exempt, no impairment of contract); Turnpike Co. v. Maryland, 3 Wall. 210 (1866; may forfeit charter though the state aided competing railroad); Watson v. Maryland, 218 U.S. 173 ( 1910; medical regulation law valid); Elkan v. Maryland, 239 U.S. 634 (1915; state may establish minimum wages for employees of public contractor); Molinari v. Maryland, 263 U.S. 685 (1924); liquor license and tax laws valid).
n10) Maryland v. Railroad Co., 22 Wall. 105 (1875; railroad need not pay state gold dividends because state pays gold interest).
n11) 4 Wheat, 316 (1819).
n12) 2 Cranch 358, 396-397 (1805).
n13) Material in this paragraph from Warren, The Supreme Court, I, 505-506.
n14) Material in this paragraph from Warren, I, 506-506.
n15) Bowers, Jefferson and Hamilton, 352.
n16) Laws of 1822, p. 180, Resolution No. 60; the act was rescinded the next year, laws of 1823, p. 141, Resolution No. 16.
n17) Beveridge, John Marshall, IV, 286.
n18) Beveridge, IV, 284.
n19) Beveridge, IV, 287.
n20) Warren, I, 507-508.
n21) Steiner, The Life of Reverdy Johnson, 5.
n22) Kennedy, William Wirt, II, 54.
n23) Kennedy, II, 107; see also I, 358; II, 105.
n24) Kennedy, I, 380.
n25) Kennedy, II, 67
n26) 4 Wheat. 316, 415.
n27) Warren, I, 522, 523.
n28) Beveridge, IV, 318-321.
n29) 297 U.S. 209.
n30) C. 160, 49 Stat. 1185.
n31) 254 U.S. 51 (1920).
n32) Maryland v. Soper (No. 1), 270 U.S. 9; Maryland v. Soper (No. 2), 270 U.S. 36; Maryland v. Soper (No. 3), 270 U.S. 44.
n33) Brown v. Maryland, 12 Wheat. 419, 444-446 (1824).
n34) 12 Wheat. 419 (1827).
n35) See, as to the original package doctrine, Sonneborn Bros. v. Cureton, 262 U.S. 506, and as t the applicability of the imports clause to interstate commerce, Woodruff v. Parham, 8 Wall. 123.
n36) See, for example, Southern Pacific Co. v. Gallagher, No. 212, October Term, 1938.
n37) 18 How. 71.
n38) 12 How. 299.
n39) 120 U.S. 489 (1887).
n40) 120 U.S. 502 (1887)
n41) 235 U.S. 610.
n42) Welton v. State of Missouri, 91 U.S. 275; Guy and Baltimore, 100 U.S. 434; Tiernan v. Rinker, 102 U.S 123; County of Mobile v. Kimball, 102 U.S. 691,697; Webber v. Virginia, 103 U.S. 344; Walling v. Michigan, 116 U.S. 446; Scott v. Donald, 165 U.S. 58, 101; Vance v. W. A.Vandercock Co. (No. 1). 170 U.S. 438, 449-450; Darnell & Son v. Memphis, 208 U.S. 113.
n43) 12 Wall. 418 (1871).
n44) Railroad Co. v. Husen, 95 U.S. 465; Voight v. Wright, 141 U.S. 62; Minnesota v. Barber, 136 U.S> 313; Hale v. Bimco Trading, Inc., No. 418, October Term, 1938,
n45) 107 U.S. 38 (1882)
n46) 232 U.S. 494 (1914).
n47) 303 U.S. 250.
n48) Coverdale v. Arkansas Pipe Line Co., 303 U.S. 604; Gwin, etc., Inc., v. Henneford, 305 U.S. 434.
n49) Dissenting in Gwin, etc., Inc., v. Henneford, 305 U.S. 434.
n50) Labor Board v. Jones & Laughlin, 301 U.S. 1; National Labor Relations Board v. Fainblatt, No. 514, October Term, 1938; Currin v. Wallace, No. 275, October Term, 1938; Mulford v. Smith, No. 505, October Term, 1938.