Supreme Court decision
By: John Marshall Harlan
Date: February 23, 1903
Source: Harlan, John Marshall. Champion v. Ames. 188 U.S. 161 (1908). Available online at (accessed November 22, 2002).
About the Author: John Marshall Harlan (1833–1911), "the Great Dissenter," was born in Kentucky. After pursuing a career as a lawyer and politician, he served on the U.S. Supreme Court from 1877 until his death. Harlan was famous for his dissenting opinions, including his lone dissents in Plessy v. Ferguson and Berea College v. Kentucky. Before becoming a Supreme Court justice, he was attorney general of Kentucky and the Republican gubernatorial candidate in Kentucky in 1871 and in 1875.
In 1895, the U.S. Congress passed a law forbidding people from shipping lottery tickets between states, justifying the act as part of its commerce power under the Constitution of the United States. Above and beyond the lottery issue, the act was one of the first times Congress had attempted to forbid a mostly noncommercial item from being passed through interstate commerce. The commerce clause in the Constitution allows Congress to "regulate" interstate commerce, but it was not at all clear that banning something from interstate commerce was not stepping beyond the bounds of merely "regulating." The lottery act, therefore, raised several questions: Could Congress regulate a noncommercial item? Could Congress enact social policy through the commerce clause? Finally, could Congress ban an item from being shipped in interstate commerce? All of these questions were presented by the Champion v. Ames case, which was decided by the Supreme Court in 1908.
In Champion v. Ames, the Supreme Court ruled in favor of the federal government, thereby allowing it to prohibit commerce as part of the process of regulation. This decision opened the way for future rulings on interstate commerce. In a later case, the Supreme Court allowed Congress to tax "yellow oleo," now called margarine, as a part of its taxing power. The oleo law had clearly been passed to help butter manufacturers fight off competition from margarine makers, but the Court upheld the legislation. The Supreme Court also allowed Congress to ban impure foods, impure drugs, and impure meats from interstate commerce. The only items not allowed to be banned were products of child labor. The Supreme Court was less generous in other areas of the commerce clause in the early twentieth century, as it struck down congressional attempts to regulate railroad labor.
In the 1930s, the Supreme Court broadened its view of the commerce clause again by allowing Congress to regulate labor conditions. However, the Court began to take a more narrow view of "immoral" products that were subject to being banned. Magazines, for instance, could be viewed as a function of the press, and they began to be protected under a wider view of the freedom of the press by the Warren Court. During the last third of the twentieth century, the Burger and Rhenquist Courts narrowed this protection while allowing Congress latitude under the commerce clause.
Primary Source: Champion v. Ames [excerpt]
SYNOPSIS: John Marshall Harlan presented the Court's ruling on Champion v. Ames. He first holds that lottery tickets, being part of interstate traffic, are part of interstate commerce. He then states that a ban on such tickets is an allowable regulation. Harlan closes by arguing that the regulation is a reasonable one, and that it is not invalidated by potential abuses of the commerce clause. The Harlan dissent takes the position that regulation is an exercise of police power, which resides solely with the states; therefore, since Champion v. Ames would give such power to the federal government, it should be declared unconstitutional.
Mr. Justice Harlan delivered the opinion of the court:
The appellant [Charles F. Champion] insists that the carrying of lottery tickets from one state to another state by an express company engaged in carrying freight and packages from state to state, although such tickets may be contained in a box or package, does not constitute, and cannot by any act of Congress be legally made to constitute, commerce among the states within the meaning of the clause of the Constitution of the United States providing that Congress shall have power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;" consequently, that Congress cannot make it an offense to cause such tickets to be carried from one state to another.
The government insists that express companies, when engaged, for hire, in the business of transportation from one state to another, are instrumentalities of commerce among the states; that the carrying of lottery tickets from one state to another is commerce which Congress may regulate; and that as a means of executing the power to regulate interstate commerce Congress may make it an offense against the United States to cause lottery tickets to be carried from one state to another.
The questions presented by these opposing contentions are of great moment, and are entitled to receive, as they have received, the most careful consideration.…
It was said in argument that lottery tickets are not of any real or substantial value in themselves, and therefore are not subjects of commerce. If that were conceded to be the only legal test as to what are to be deemed subjects of the commerce that may be regulated by Congress, we cannot accept as accurate the broad statement that such tickets are of no value. Upon their face they showed that the lottery company offered a large capital prize, to be paid to the holder of the ticket winning the prize at the drawing advertised to be held at Asuncion, Paraguay. Money was placed on deposit in different banks in the United States to be applied by the agents representing the lottery company to the prompt payment of prizes. These tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would pay to him the amount of the prize drawn.…
We are of opinion that lottery tickets are subjects of traffic, and therefore are subjects of commerce, and the regulation of the carriage of such tickets from state to state, at least by independent carriers, is a regulation of commerce among the several states.
But it is said that the statute in question does not regulate the carrying of lottery tickets from state to state, but by punishing those who cause them to be so carried Congress in effect prohibits such carrying; that in respect of the carrying from one state to another of articles or things that are, in fact, or according to usage in business, the subjects of commerce, the authority given Congress was not to prohibit, but only to regulate. This view was earnestly pressed at the bar by learned counsel, and must be examined.…We have said that the carrying from state to state of lottery tickets constitutes interstate commerce, and that the regulation of such commerce is within the power of Congress under the Constitution. Are we prepared to say that a provision which is, in effect, a prohibition of the carriage of such articles from state to state is not a fit or appropriate mode for the regulation of that particular kind of commerce? If lottery traffic, carried on through interstate commerce, is a matter of which Congress may take cognizance and over which its power may be exerted, can it be possible that it must tolerate the traffic, and simply regulate the manner in which it may be carried on? Or may not Congress, for the protection of the people of all the states, and under the power to regulate interstate commerce, devise such means, within the scope of the Constitution, and not prohibited by it, as will drive that traffic out of commerce among the states?
In determining whether regulation may not under some circumstances properly take the form or have the effect of prohibition, the nature of the interstate traffic which it was sought by the act of May 2d, 1895, to suppress cannot be overlooked… In other cases we have adjudged that authority given by legislative enactment to carry on a lottery, although based upon a consideration in money, was not protected by the contract clause of the Constitution; this, for the reason that no state may bargain away its power to protect the public morals, nor excuse its failure to perform a public duty by saying that it had agreed, by legislative enactment, not to do so.…
If a state, when considering legislation for the suppression of lotteries within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with the power to regulate commerce among the several states, provide that such commerce shall not be polluted by the carrying of lottery tickets from one state to another? .…
It is said, however, that if, in order to suppress lotteries carried on through interstate commerce, Congress may exclude lottery tickets from such commerce, that principle leads necessarily to the conclusion that Congress may arbitrarily exclude from commerce among the states any article, commodity, or thing, of whatever kind or nature, or however useful or valuable, which it may choose, no matter with what motive, to declare shall not be carried from one state to another. It will be time enough to consider the constitutionality of such legislation when we must do so. The present case does not require the court to declare the full extent of the power that Congress may exercise in the regulation of commerce among the states. We may, however, repeat, in this connection, what the court has heretofore said, that the power of Congress to regulate commerce among the states, although plenary, cannot be deemed arbitrary, since it is subject to such limitations or restrictions as are prescribed by the Constitution. This power, therefore, may not be exercised so as to infringe rights secured or protected by that instrument. It would not be difficult to imagine legislation that would be justly liable to such an objection as that stated, and be hostile to the objects for the accomplishment of which Congress was invested with the general power to regulate commerce among the several states. But, as often said, the possible abuse of a power is not an argument against its existence. There is probably no governmental power that may not be exerted to the injury of the public. If what is done by Congress is manifestly in excess of the powers granted to it, then upon the courts will rest the duty of adjudging that its action is neither legal nor binding upon the people. But if what Congress does is within the limits of its power, and is simply unwise or injurious, the remedy is that suggested by Chief Justice Marshall in Gibbons v. Ogden, when he said: "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments."
The whole subject is too important, and the questions suggested by its consideration are too difficult of solution, to justify any attempt to lay down a rule for determining in advance the validity of every statute that may be enacted under the commerce clause. We decide nothing more in the present case than that lottery tickets are subjects of traffic among those who choose to sell or buy them; that the carriage of such tickets by independent carriers from one state to another is therefore interstate commerce; that under its power to regulate commerce among the several states Congress—subject to the limitations imposed by the Constitution upon the exercise of the powers granted—has plenary authority over such commerce, and may prohibit the carriage of such tickets from state to state; and that legislation to that end, and of that character, is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress.
The judgment is affirmed.
Mr. Chief Justice Fuller, with whom concur Mr. Justice Brewer, Mr. Justice Shiras, and Mr. Justice Peckham, dissenting: .…
The maked [sic] question is whether the prohibition by Congress of the carriage of lottery tickets from one state to another by means other than the mails is within the powers vested in that body by the Constitution of the United States. That the purpose of Congress in this enactment was the suppression of lotteries cannot reasonably be denied. That purpose is avowed in the title of the act, and is its natural and reasonable effect, and by that its validity must be tested.…
The power of the state to impose restraints and burdens on persons and property in conservation and promotion of the public health, good order, and prosperity is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive, and the suppression of lotteries as a harmful business falls within this power, commonly called, of police.…
Thus it is seen that the right of passage of persons and property from one state to another cannot be prohibited by Congress. But that does not challenge the legislative power of a sovereign nation to exclude foreign persons or commodities, or place an embargo, perhaps not permanent, upon foreign ships or manufactures.…
I regard this decision as inconsistent with the views of the framers of the Constitution, and of Marshall, its great expounder. Our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments, as with religions: the form may survive the substance of the faith.
In my opinion the act in question in the particular under consideration is invalid, and the judgments below ought to be reversed, and my brothers Brewer, Shiras and Peckham concur in this dissent.
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Champion v. Ames. Available online at http://www.tltc.ttu.edu/Cochran/Cases%20&%20Readings/Gaming... ; website home page: http://www.tltc.ttu.edu/content/asp/main/start.asp (accessed January 9, 2003).
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