Open main menu

Page:Harvard Law Review Volume 1.djvu/192

This page has been proofread, but needs to be validated.

the law is opposed to the well-established principle of the bridge cases, and also to the principles laid down in the case of Gibbons v. Ogden.

Has this tendency become established law? The writer thinks that it has not. There has certainly been no deliberate repudiation in any of the cases of the doctrine of the case of Gibbons v. Ogden. On the contrary, that case has ever been regarded as the source and fountain-head of the law, and its utterances as almost above criticism. The dicta in the modern cases in conflict with the doctrine of Gibbons v. Ogden were, it would seem, the result of a failure to grasp and understand that doctrine, and not of a deliberate intention to lay down principles in conflict with it. In the very cases where those dicta are uttered, the case of Gibbons v. Ogden is often cited with approval, and in none of them is there the least attempt at criticism of that case. Again, the bridge cases can only be explained by the theory that intention is the only criterion of a regulation of foreign or interstate commerce; and the cases holding State laws ostensibly passed for some proper purpose, but really intended to regulate foreign or interstate commerce, to be regulations of such commerce, also strongly support that theory.

When we examine the question on principle, the arguments in favor of the theory of “intention” as the true criterion of a regulation of foreign or interstate commerce strongly preponderates. The theory that State laws “unreasonably” affecting foreign or interstate commerce may be held unconstitutional, as regulations of such commerce, is objectionable, in making a court of law the arbiter of the reasonableness or unreasonableness of a measure passed by a State to accomplish an object or aim admitted to be proper and legal. Again, Congress can at any time control State legislation deemed unduly oppressive to foreign or interstate commerce by positive enactment by virtue of its commercial power.

In the opinion of the writer, according to the law as it stands to-day, the purpose or intention of the State Legislature in passing a law operating upon foreign or interstate commerce is the only criterion of whether it is or is not a regulation of foreign or interstate commerce, and the difficulties of the law would be greatly lessened if the Courts would clearly and in express terms adopt this criterion.

Louis M. Greeley.

Chicago, Ill.