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Page:Harvard Law Review Volume 1.djvu/178

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asserts that the case, as a whole, is in favor of a subordinate “concurrent power” in the States; and instances in support of this assertion the admission of the Court on pp. 205, 206, that a State may, in the execution of its police and health powers, pass laws operating directly upon foreign or interstate commerce. This argument in favor of “concurrent power” in the States, based on the language of Chief-Justice Marshall, entirely overlooks the distinction taken by him, and heretofore adverted to, that identical or very similar measures may emanate from entirely different sovereign powers, and that therefore the admitted validity of State laws, such as quarantine laws or pilotage laws, operating upon foreign or interstate commerce, and containing provisions such as Congress might enact by virtue of its commercial power, by no means proved that the State had concurrent power to regulate foreign or interstate commerce.

The opinion of Catron, J., adds nothing to the reasoning of Taney, C.J., and therefore may be passed over. The opinion of McLean, J., is not particularly noteworthy. It sustains the State law as a valid police regulation, but does not go into the general question of the distinction between police regulations and regulations of foreign or interstate commerce. Woodbury, J., in his opinion, seems clearly to recognize the intention of the Legislature in passing any given law as the ultimate test of whether it is a regulation of foreign or interstate commerce. Thus he says: “In settling the question whether these laws impugn treaties or regulate either foreign commerce or that between the States, or impose a duty on imports, ordinary justice to the States demands that they be presumed to have meant what they profess, till the contrary is shown. Hence as these laws were passed by States possessing experience, intelligence, and a high tone of morals, it is neither legal nor liberal to attempt to nullify them by any forced construction, so as to make them regulations of foreign commerce, or measures to collect a revenue by a duty on foreign imports; thus imparting to them a different character from that professed by their authors, or from that which by their provisions and tendency they appear designed for. These States are as incapable of duplicity or fraud in their laws, or meaning one thing and professing another, as the purest among their accusers; and while legitimate and constitutional objects are assigned, and means used which seem adapted to such ends, it is illiberal to impute other