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Page:Harvard Law Review Volume 2.djvu/333

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gress that foreign and interstate commerce shall be subjected ^ no restraints. But such subjects as do not admit of a uniform national system of regulation may be regulated by the States, where these subjects have not been regulated by congressional legislation. State quarantine laws are constitutional as coming under this exception, or, perhaps, on account of the dormancy of the power of Congress to regulate commerce, in relation to the part of the subject of quarantine covered by these laws. Yet a State cannot by the provisions of a police law burden or obstruct foreign or interstate commerce to a greater extent than is essential and necessary for the accomplishment of the purpose of the law. Therefore the burdensome provisions of a State quarantine law must be essential to the protection of the public health. A quar- antine, under State laws, which is established for other purposes than the protection of health, is unconstitutional, for the above reason that, being no longer a bond fide exercise of police power, it abridges " the privileges or immunities of citizens of the United States," and, possibly, because it deprives persons of "liberty or property without due process of law," in violation of the Four- teenth Amendment. Under the power to regulate commerce, Congress can assume control of the whole subject of quarantine. From that time all State legislation upon the subject, in conflict with the laws of Congress, would be void. Hitherto, however, Congress has intentionally left the States free to regulate quaran- tine for themselves.

Blewett Harrison Lee, Harvard Law School, May, 1888.