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Show -45- recent series of admiralty decisions, 165 are restricted to a special and independent branch of constitutional law, and are irrelevant to the his- toric applications of the Commerce Clause* The decisive differences in the considerations applicable to the commerce cases compared with those that govern the admiralty decisions are strikingly illustrated in a recent dis- sent by Mr. Justice McReynolds, the spokesman of the Court for the admir- alty doctrine. 166 The only question of "uniformity" which is raised by Congressional assent to regional control of electric power is the practi- cal question whether the proposed regional control is in fact confined to a regional problem. Being a question of fact it must be adjudged as a question of fact* not by any technical or pedantic presuppositions.. 167 Tht circumstances of the individual situation ccntrol being a judgment on practical affairs its exercise is primarily and persuasively for Congress* not for the Courts. The process which is invoked and the profound reasons for deference to the Congressional judgment have been put in classic lan- guage by James Bradley Thayer "Now the question whether or not a given subject admits of only one uniform system or plan of regulrtion is primarily a legislative question, not a judicial one. For it involves a consideration of what, on practical grounds is expedient, possible, or desirable; and whether, being so at one time or place, it is so at another; as in the cases of quarantine and pi- lotage laws, and laws regulating the bringing in and sale of particular articles, such as intoxicating liquors or opium. As regards the last- named drug, the desirable rule for California, where there are many China- men, and for Vermont, where there are few, may conceivably be different. It is not in the language itself of the clause of the Constitution now in l65 Southern Pacific Co. v. Jensen supra note 163« Knickerbocker Ice Co. v. Stewart (1919) 253 U. S, 160, 140 Sup» Ct. 438; Union Fish Co. v. Erickson (1919) 2^8 U. S. 308, 39 Sup. Ct, 112; Chelantis v. Luckenbach S. S* Co. (1918) 2U7 u« S* 372, 38 Sup» Ct. 501; Washington v. Dawson & Co. (192U) 26U u» S. 219, Uk Sup. Ct. 302. The series of decision has been severely criticized by writers bred in the admiralty tradition. See Hough, Admiralty Jurisdiction - of Late Years (l92i+) 37 Harv. L» Rev. 529; Palfrey Common Law Courts and the Law of the Sea (1923) 36 Harv. L« Rev, 777; Uni- formity in the Admiralty Law (1921+) 37 Harv. L* Rev. HII4. See also FelL* Recent Problems in Admiralty Jurisdiction (1922) passim. See McReynoldsj J., dissenting in Buck v. Kuykendall (1925) JLj-5 Sap. Ct« 327: "Interstate commerce has been greatly aided - amazingly facilitat- ed, indeed - through the legislation and expenditures of the States . . . As the Federal Government has not and cannot undertake specific regulation, local control'must continue; otherwise chaotic conditions will quickly develop. The problems are essentially local and, until something is don© which tends really to hinder interstate commerce, should be left to the local authorities . . . Manifestly, the situation cannot be met by general Federal rules." 167Cf. Holmes> J., in Swift & Co. v. United States (1905) 196 U. s, 375* 398, 25 Sup. Ct, 276, 280» "Commerce among the States is not a tech- nical legal conception, but a practical one, dram from the course of busi- ness. " |
