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27 N.Y.U. L. Rev. 218 (1952)
Mr. Justice Rutledge's Philosophy of the Commerce Clause

handle is hein.journals/nylr27 and id is 232 raw text is: MR. JUSTICE RUTLEDGE'S PHILOSOPHY OF THE COMMERCE CLAUSE* LESTER E. MOSHER If a floor of economic security and freedom is essential to main- taining the other great freedoms of mind and heart with all that goes to make up our prized individual liberty, the essence of democracy, the commerce clause has had part also in this.' While Justice Rutledge will probably best be remembered for the boldness with which he took his stand in defense of basic indi- vidual liberties, he was also an ardent proponent of federalism. He believed that the principle of federal union, with power adequate for the common need, but safeguarded in the interest of freedom by division between nation and state, afforded the only feasible method for reconciling the conflicting claims of state and national power. Indeed he affirmed that the federal principle, in its universal application, offers the only hope for the survival of democracy.2 Justice Rutledge regarded the commerce clause of the Consti- tution as part of the fabric of our federal system. His Declaration of Legal Faith termed that clause a uniquely federal instrument' which he considered not the measure, but rather the means of achieving a proper federal-state balance by preventing concentra- tion as well as Balkanization of power.4 The significance that Justice Rutledge attached to the commerce clause is best expressed in his own words: It may be strange to think of a purely commercial power as one of the foundations of democratic institutions. But in my judgment this is just what the commerce clause has turned out to be. It is LESTER E. MosHER is a member of the New York Bar. * This article is a sequel to Mr. Justice Rutledge's Philosophy of Civil Rights, 24 N.Y.U.L. REv. 661 (1949). 1 RUTLEDGE, A DxCLARATION op LEGAL FAiTR 76, 77 (1947). This little volume is a compilation of lectures delivered by the Justice at the University of Kansas on Dec. 2-4, 1946. The first lecture, which bears the title of the book, discusses *the paradoxical relationship between freedom and law, with justice set forth as the accommodating instinct or principle for securing the right adjustment between the individual and society. The main portion of this short treatise is de- voted to The Commerce Clause: A Chapter in Democratic Living. Id. at 25-82. Justice Rutledge's philosophy of the relations between the states and the Federal Government, so dearly enunciated in this treatise, found expression in many of his commerce clause opinions. 2 Id. at 77. 3 Id. at 33. 4 Id. at 76. Imaged with the Permission of N.Y.U. Law Review

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