ArtI.S8.C3.1.10.3 Foreign Commerce: Banned Articles

Article I, Section 8, Clause 3:

[The Congress shall have Power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

The forerunners of more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. Congress has exercised this power since 1842, when it forbade the importation of obscene literature or pictures from abroad. 1 Six years, later it passed an act to prevent the importation of spurious and adulterated drugs and to provide a system of inspection to make the prohibition effective. 2 Such legislation guarding against the importation of noxiously adulterated foods, drugs, or liquor has been on the statute books ever since. In 1887, the importation by Chinese nationals of opium was prohibited, 3 and subsequent statutes passed in 1909 and 1914 made it unlawful for anyone to import it. 4 In 1897, Congress forbade the importation of any tea inferior in purity, quality, and fitness for consumption as compared with a legal standard. 5 The Act was sustained in 1904, in Buttfield v. Stranahan. 6 In The Abby Dodge an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained but construed as not applying to sponges taken from the territorial water of a state. 7

In Weber v. Freed, 8 the Court upheld an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights. Chief Justice White grounded his opinion for a unanimous Court on the complete and total control over foreign commerce possessed by Congress, in contrast implicitly to its lesser power over interstate commerce. 9 And, in Brolan v. United States, 10 the Court rejected as wholly inappropriate citation of cases dealing with interstate commerce on the question of Congress’s power to prohibit foreign commerce. It has been earlier noted, however, that the purported distinction is one that the Court both previously to and subsequent to these opinions has rejected.


  1.  Jump to essay-1Ch. 270, § 28, 5 Stat. 566.
  2.  Jump to essay-29 Stat. 237 (1848).
  3.  Jump to essay-324 Stat. 409.
  4.  Jump to essay-435 Stat. 614; 38 Stat. 275.
  5.  Jump to essay-529 Stat. 605.
  6.  Jump to essay-6192 U.S. 470 (1904).
  7.  Jump to essay-7223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947).
  8.  Jump to essay-8239 U.S. 325 (1915).
  9.  Jump to essay-9239 U.S. at 329.
  10.  Jump to essay-10236 U.S. 216 (1915).