merce.[1] Mr. Justice Story seems to have considered police regulations and regulations of commerce as mutually exclusive terms,[2] and such was clearly the view of Mr. Justice Baldwin in Groves v. Slaughter.[3] On the contrary, Chief Justice Taney, for example, declared that " all of these health and quarantine laws are necessarily, in some degree, regulations of foreign commerce in the ports and harbors of the State."[4] After the question how far the power of Congress to regulate commerce is exclusive was in a degree settled by the case of Cooley v. Port Wardens,[5] the term "regulation of commerce" ceased to be used in a sense implying either unconstitutionality or the exclusion of police regulations. In the later decisions of the Supreme Court the words are used in the same sense in which Chief Justice Taney used them. For instance, a State quarantine law is now considered to be a regulation of commerce,[6] although a police regulation; while a large class is now recognized of regulations of foreign and interstate commerce which may be constitutionally enacted by the States. To-day, in order to be declared unconstitutional under the commercial clause of the Constitution, a State law must be not only a regulation of foreign or interstate commerce, but one in conflict with the power of regulation as actually exercised by Congress.
The view is put forward in a recent number of the Harvard Law Review,[7] in an article by Mr. Greely, that the test whether a State law is a regulation of foreign or interstate commerce is the object of the Legislature in passing the law. If intended for police purposes, Mr. Greely contends that the law is not a regulation of commerce. Of this view it is to be said that the authorities are decidedly against it. Beyond the dicta of Justice Johnson in Gibbons v. Ogden,[8] and Woodbury in the License Cases[9] and Passenger Cases,[10] and the opinion of the court in City of New York v. Miln,[11] the force of which is weakened by the powerful dissent of Marshall and Story, the present writer has failed to find
- ↑ 9 Wheat. 72.
- ↑ Story on Const., § 1090, 4th ed.
- ↑ 15 Pet. 449, 511 (1841).
- ↑ License Cases, 5 How. 504, 581, 582 (1847).
- ↑ 12 How. 299 (1851).
- ↑ Morgan v. Louisiana, 118 U. S. 455, 463, 465 (1886).
- ↑ Harv. L. Rev. 159.
- ↑ 9 Wheat. 1, 235 (1824).
- ↑ 5 How. 504, 626 (1847).
- ↑ 7 How. 283. 552, 553 (1849).
- ↑ Pet. 102, 137 (1837).
