HARVARD
LAW REVIEW.
WHAT IS THE TEST OF A REGULATION OF FOREIGN OR INTERSTATE COMMERCE?
NO class of cases are more perplexing than those involving
the distinction between the power of Congress to regulate
foreign or interstate commerce and the so-called police power of
the States. It has always been conceded that there were many
kinds of laws, such as quarantine laws, health laws, etc., operating
upon foreign or interstate commerce, which were within the power
of the States. How are such laws to be distinguished on principle
from regulations of foreign or interstate commerce within the exclusive
power of Congress? On this point the more recent cases
are very unsatisfactory. While these cases almost always commend
themselves to our common sense as actual decisions upon
the facts, the reasoning upon which the decisions are based is
meagre and unsatisfactory; indeed, very little general reasoning
is attempted. The court almost invariably confines itself to a
decision upon the facts involved.
The cause of this hesitancy of the judges to lay down general principles upon the distinction between laws affecting foreign or interstate commerce, which are within the powers of the States, and those which are regulations of foreign or interstate commerce, and within the exclusive power of Congress, is, in the opinion of the writer, to be ascribed to the confusion in which the law was left by
