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Page:Harvard Law Review Volume 1.djvu/175

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what their decision would have been had such a case come before them. During the ten years that elapsed between the decision in New York v. Miln, in 1837, and that in the License Cases, which were decided in 1847, circumstances had changed materially. In the first place, the question of State or national sovereignty had become much more prominent, in the ripening of events which afterward brought about the civil war. In the next place, there had been a great change in the personnel of the Supreme Court, and among the new judges were many advocates of the extreme State rights theory. These judges seized upon the License Cases and Passenger Cases as opportunities for committing the Supreme Court to the view that the commercial power of Congress was “concurrent” and not “exclusive,”—that view being consonant with their theory of State rights. They fought the fight in favor of “concurrency” with the zeal and fervency of intense conviction, and pressed into service every argument they could think of to support their cause. This vigorous onset of the State rights judges threw the Court into confusion. Some of the judges, who were not prepared to accept the view that the commercial power of Congress was “concurrent,” were yet not prepared to commit themselves to the view that that power was “exclusive” and sought to avoid any decision of the question of “exclusiveness” or “concurrency.” Other judges boldly came out in favor of the view that the power was “exclusive” in Congress. The result was that in both of those cases most of the members of the Court delivered lengthy separate opinions; each judge who delivered an opinion giving his individual position upon the question of “concurrency” or “exclusiveness,” and arguing at length in support of it, any impartial or dispassionate examination of the question being almost impossible, owing to its vital political bearings.

With the License Cases and Passenger Cases we should not in this article be concerned, had they been taken up with a discussion of the question of “concurrency” or “exclusiveness” merely, for subsequent cases have since conclusively settled that the power is to a large extent, at any rate, “exclusive.” But in that discussion the further question became involved of what constitutes a regulation of foreign or interstate commerce, and in this aspect those cases are of very great importance to us. This latter question became involved in the following way: We have seen that, at the time the case of Gibbons v. Ogden was before the Court,