Latest Development of the Interstate Commerce Power

The litigation under the anti-lottery act of 1895, has for the first time raised the important constitutional question whether congress, under its general power to regulate interstate commerce, can select any particular article and exclude it from interstate commerce altogether-whether the power to regulate involves the power to prohibit. For nearly a century after the foundation of the government no attempt was made by congress to restrict interstate commerce by excluding any article therefrom. Quarantine legislation, however, opened the way, and the anti-lottery act sharply raised the question of power. Lottery tickets in the earliest days of the republic were the subjects of lawful and popular, and even pious traffic. They were among the most universal means of raising money. They built churches, schools and colleges. They were used by the United States government itself as a fiscal agency. Bold would have been the man who would dare predict what has, however, happened-that lottery tickets in a century would be regarded by the great majority of the people as an evil, and would be prohibited by the legislature of almost every state. Congress first excluded them from the mails, and this, after much litigation, was sustained under the general power to conduct the mails. Congress next, in 1895, took a more radical step and excluded them from interstate commerce altogether. This raised two interesting questions under the power to regulate commerce; first, whether a lottery ticket is an article of commerce at all; and second, whether the power to regulate commerce implies the power to prohibit it