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Page:Harvard Law Review Volume 1.djvu/176

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the power of the States to pass laws affecting foreign or interstate commerce, such as quarantine laws, health laws, etc., was conceded, and the Court in that case explained those laws as emanations from the reserved powers of the States, and not as regulations of foreign or interstate commerce. The temptation to use such laws as an argument in favor of the “concurrency” theory was too strong for some of the judges to resist. They accordingly abandoned the explanation given in Gibbons v. Ogden, and held boldly that such State laws were regulations of foreign or interstate commerce, because operating upon or affecting such commerce, and argued from their admitted validity that the power to regulate foreign or interstate commerce must be “concurrent.” This argument has had a very important influence upon the law, in that it has tended to obscure and overthrow the distinctions taken in Gibbons v. Ogden, heretofore adverted to, and has been, in the opinion of the writer, the fruitful source of error and confusion. It therefore becomes necessary to study with care the License Cases and the Passenger Cases, to see how far this argument obtained the assent of the Court, and how much authority it derives from those cases.

The License Cases involved the validity of State liquor license laws, which, it was claimed, were unconstitutional, in so far as they operated to impose a burden upon the sale of liquor brought into the State from without. The entire Court sustained the validity of the laws, but the judges were by no means agreed as to the reasons upon which the decision should be based. Justices McLean and Grier reached the conclusion that the laws in question were not regulations of foreign or interstate commerce, and that therefore no constitutional objection could be raised against them under the commercial clause of the Federal Constitution. This view of the case would seem to commend itself to reason and good sense. It did not, however, satisfy some of the “States rights” judges in the Court. Chief-Justice Taney took the position that the State laws were regulations of foreign or interstate commerce, in so far as they operated to impose burdens upon the sale in original packages of liquor brought into the State, but that the power to regulate foreign or interstate commerce was “concurrent,” and that, consequently, the laws were valid. Justice Catron delivered an opinion agreeing in substance with that of Taney, C. J.