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312 HARVARD LAW REVIEW.

true construction, to have power to declare a quarantine for any other purpose than the protection of the public health.

One other limitation upon the rights of the States to enact quarantine laws remains to be considered, namely, the efifects of quarantine legislation by Congress under its power to regulate commerce. If Congress can constitutionally enact quarantine laws, as we have seen the Constitution make them, the " supreme law of the land,*' all conflicting State legislation becomes void. That Congress has the right to pass quarantine laws has been the opinion expressed by some of the greatest commentators upon the Constitution.^ If a quarantine law is in its nature a regulation of foreign and interstate commerce, it follows that Con- gress has power to enact it. In the language of Judge Cooley, repeatedly quoted by the Supreme Court,^ "It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable ; and to whatever extent ground shall be covered by these directions, the exercise of State power is excluded. Congress may establish police regulations, as well as the States ; confining their operation to those subjects over which it is given control by the Constitu- tion.'* ® Turning to judicial opinions, it is intimated by Chief Justice Marshall, in Gibbons 2/. Ogden,* that possibly Congress has power to pass laws upon such subjects as quarantine "for national purposes " where the power " is clearly incidental to some power which is expressly given.'*

It is said by Mr. Justice Wayne, in the Passenger Cases,^ that the States retain under the Constitution "qualified rights to protect their inhabitants from disease ; imperfect and qualified, because the commercial power which Congress has is necessarily connected with quarantine. And Congress may, by adoption, presently and for the future, provide for the observance of such State laws, mak- ing such alterations as the interests and convenience of commerce

1 Tucker's Blackstone, App. 251 (1803); 2 Story, Const. 107 1; Cooley, Princ. Const Law, 74; Const. Lim. 5th ed. 724 (*586). The opposite view is taken in an article upon Quarantine I aw, I South. L. J. & Rep. 160 (188 1).

« Gloucester Ferry Co. v, Pennsylvania, 114 U. S. 196, 215 (1884); W. U. Telegraph Co. V. Pendleton, 122 U. S. 347, 355.

» Cooley, Const. Lim. 5lh ed. 724 (♦586).

  • 9 Wheat. 203, 204 (1824).

» 7 How. 283, 424 (1849).