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HARVARD LA W REVIEW.

controversy, but it has been repeatedly followed.^ It lays down the same doctrine as to the power of Congress to regulate com- merce that was laid down in Sturges v, Crowinshield, as to the power to establish bankruptcy laws. ** It is not the mere existence of the power, but its exercise, which is incompatible with the exer- cise of the same power by the States." The language and reason- ing of Gibbons v. Ogden, as explained by the shortly following decision in Willson v. The Black Bird Creek Marsh Co., seem to indicate the following doctrine. Congress has an exclusive power to regulate foreign and interstate commerce, which, while in exer- cise upon a given subject, precludes conflicting regulations by the States. The first question, therefore, in every case of a State law claimed to be in conflict with this clause of the Constitution, is whether Congress has regulated this subject.

In order to determine whether Congress has regulated a given subject under its power to regulate foreign and interestate com- merce, the court has to construe the legislation, or the inaction, of Congress on that subject, as the case may be, for it is obvious that the absence of express legislation may indicate the will of Congress that no restraints shall be imposed whatever. To con- sider, first, the effect of legislation, it is to be said that the same question arises whenever a State law conflicts with a Federal one, for the Constitution provides that "This Constitution and the laws of the United States which shall be made in pursuance thereof, . . . shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstand- ing." ^ As said by Chief Justice Marshall, in Gibbons v. Ogden,^

    • The nullity of any act inconsistent with the Constitution is pro-

duced by the declaration that the Constitution is the supreme law. The appropriate application of that part of the clause which con- fers the same supremacy on laws and treaties is to such acts of the State legislatures as do not transcend their powers, but though

1 See United States v. The New Bedford Bridge, i Wood. & M. 401,424 (1846); License Cases, 5 How. 504, opinions of Taney, C. J., and Catron, J. (1847); Silliman v. The Hudson River Bridge Co., 4 Blatch. 409 (1859); Oilman v. Philadelphia, 3 Wall. 713 (1865); The Passaic Bridges, ib, 782; Escanaba Co. v, Chicago, 107 U. S. 678 (1882): Willamette Iron Bridge Co. v. Hatch, 125 U. S. I, 8 Sup. Ct. Rep. 811 (March 19, 1888).

  • Art. vi. cl. 2.
  • 9 Wheat I, 210, 211.