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Page:Harvard Law Review Volume 1.djvu/170

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are not regulations of foreign or interstate commerce. The learned Chief-Justice met this argument in favor of concurrency by denying that the State laws adduced as instances of regulations of foreign or interstate commerce, enacted by the States were, in fact, regulations of such commerce. He points out that although quarantine laws, health laws, etc., may operate directly upon foreign or interstate commerce, it by no means follows that such laws are regulations of foreign or interstate commerce,—that the means employed in the exercise of entirely distinct sovereign powers may be the same, or nearly the same. Hence it follows that the operative effect of a law furnishes no certain criterion by which to decide from what sovereign power it emanated; and the fact that a State quarantine law operates upon foreign or interstate commerce, and contains provisions within the power of Congress to enact by virtue of its commercial powers, by no means proves that it is a regulation of foreign or interstate commerce. The following extract from the opinion of the Court clearly brings out the views expressed by the learned Chief-Justice:—

“It is obvious that the Government of the Union, in the exercise of its express powers, that, for example, of regulating commerce with foreign nations and among the States, may use means that may also be employed by a State in the exercise of its acknowledged powers, that, for example, of regulating commerce within the State. If Congress license vessels to sail from one port to another in the same State, the act is supposed to be necessarily incidental to the powers expressly granted to Congress, and implies no claim of a direct power to regulate the purely internal commerce of a State, or to act directly on its system of police. So, if a State, in passing laws on subjects acknowledged to be within its control, and with a view to those subjects, shall adopt a measure of the same character with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other which remains with the State, and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality.”