# Cooley v. Port of Philadelphia/Dissent McLean

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* Dissenting Opinion McLean
United States Supreme Court
53 U.S. 299
Cooley v. Port of Philadelphia
Mr. Justice McLEAN.
It is with regret that I feel myself obliged to dissent from the opinion of a majority of my brethren in this case.
As expressing my views on the question involved, I will copy a few sentences from the opinion of Chief Justice Marshall in the opinion in Gibbons v. Ogden. 'It has been said,' says that illustrious judge, 'that the act of August 7th, 1789, acknowledges a concurrent power in the states to regulate the conduct of pilots, and hence is inferred an admission of their concurrent right with Congress to regulate commerce with foreign nations and amongst the states.' But this inference is not, we think, justified by the fact.
'Although Congress,' he continues, 'cannot enable a state to legislate, Congress may adopt the provisions of a state on any subject. When the government of the Union was brought into existence, it found a system for the regulation of its pilots in full force in every state. The act which has been mentioned, adopts this system, and gives it the same validity as if its provisions had been specially made by Congress. But the act, it may be said, is prospective also, and the adoption of laws to be in future presupposes the right in the maker to legislate on the subject.'
'The act unquestionably manifests an intention to leave this subject entirely to the states, until Congress should think proper to interpose; but the very enactment of such a law indicates an opinion that it was necessary; that the existing system would not be applicable to the new state of things, unless expressly applied to it by Congress. But this section is confined to pilots within the bays, inlets, rivers, harbors, and ports of the United States, which are, of course, in whole or in part, also within the limits of some particular state. The acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject, to a considerable extent; and the adoption of its system by Congress, and the application of it to the whole subject of commerce, does not seem to the court to imply a right in the states so to apply it of their own authority. But the adoption of the state system being temporary, being only, 'until further legislative provision shall be made by Congress,' shows conclusively, an opinion that Congress could control the whole subject, and might adopt the system of the states or provide one of its own.'
Why did Congress pass the act of 1789, adopting the pilot-laws of the respective states? Laws they unquestionably were, having been enacted by the states before the adoption of the Constitution. But were they laws under the Constitution? If they had been so considered by Congress, they would not have been adopted by a special act. There is believed to be no instance in the legislation of Congress, where a state law has been adopted, which, before its adoption, applied to federal powers. To suppose such a case, would be an imputation of ignorance as to federal powers, least of all chargeable against the men who formed the Constitution and who best understood it.
Congress adopted the pilot-laws of the states, because it was well understood, they could have had no force, as regulations of foreign commerce or of commerce among the states, if not so adopted. By their adoption they were made acts of Congress, and ever since they have been so considered and enforced.
Each state regulates the commerce within its limits; which is not within the range of federal powers. So far, and no farther could effect have been given to the pilot laws of the states, under the Constitution. But those laws were only adopted 'until further legislative provisions shall be made by Congress.'
This shows that Congress claimed the whole commercial power on this subject, by adopting the pilot laws of the states, making them acts of Congress; and also by declaring that the adoption was only until some further legislative provision could be made by Congress.
Can Congress annul the acts of a state passed within its admitted sovereignty? No one, I suppose, could sustain such a proposition. State sovereignty can neither be enlarged nor diminished by an act of Congress. It is not known that Congress has ever claimed such a power.
If the states had not the power to enact pilot laws, as connected with foreign commerce, in 1789, when did they get it? It is an exercise of sovereign power to legislate. In this respect the Constitution is the same now as in 1789, and also the power of a state is the same. Whence, then, this enlargement of state power. Is it derived from the act of 1789, that pilots shall continue to be regulated 'in conformity with such laws as the states may respectively hereafter enact?' In the opinion of the Chief Justice, above cited, it is said, Congress may adopt the laws of a state, but it cannot enable a state to legislate. In other words, it cannot transfer to a state legislative powers. And the court also say that the states cannot apply the pilot laws of their own authority. We have here, then, the deliberate action of Congress, showing that the states have no inherent power to pass these laws, which is affirmed by the opinion of this court.
Ought not this to be considered as settling this question? What more of authority can be brought to bear upon it? But it is said that Congress is incompetent to legislate on this subject. Is this so? Did not Congress, in 1789, legislate on the subject by adopting the state laws, and may it not do so again? Was not that a wise and politic act of legislation? This is admitted. But it is said that Congress cannot legislate on this matter in detail. The act of 1789 shows that it is unnecessary for Congress so to legislate. A single section covers the whole legislation of the states, in regard to pilots. Where, then, is the necessity of recognizing this power to exist in the states? There is no such necessity; and if there were, it would not make the act of the state constitutional; for it is admitted that the power is in Congress.
That a state may regulate foreign commerce, or commerce among the states, is a doctrine which has been advanced by individual judges of this court; but never before, I believe, has such a power been sanctioned by the decision of this court. In this case, the power to regulate pilots is admitted to belong to the commercial power of Congress; and yet it is held, that a state, by virtue of its inherent power, may regulate the subject, until such regulation shall be annulled by Congress. This is the principle established by this decision. Its language is guarded, in order to apply the decision only to the case before the court. But such restriction can never operate, so as to render the principle inapplicable to other cases. And it is in this light that the decision is chiefly to be regretted. The power is recognised in the state, because the subject is more appropriate for state than federal action; and consequently, it must be presumed the Constitution cannot have intended to inhibit state action. This is not a rule by which the Constitution is to be construed. It can receive but little support from the discussions which took place on the adoption of the Constitution, and none at all from the earlier decisions of this court.
It will be found that the principle in this case, if carried out, will deeply affect the commercial prosperity of the country. If a state has power to regulate foreign commerce, such regulation must be held valid, until Congress shall repeal or annul it. But the present case goes further than this. Congress regulated pilots by the act of 1789, which made the acts of the state, on that subject, the acts of Congress. In 1803, Pennsylvania passed the law in question, which materially modified the act adopted by Congress; and this act of 1803 is held to be constitutional. This, then, asserts the right of a state, not only to regulate foreign commerce, but to modify, and, consequently, to repeal a prior regulation of Congress. Is there a mistake in this statement? There is none, if an adopted act of a state is thereby made an act of Congress, and if the regulation of pilots, in regard to foreign commerce, be a regulation of commerce. The latter position is admitted in the opinion of the court, and no one will controvert the former. I speak of the principle of the opinion, and not of the restricted application given to it by the learned judge who delivered it.
The noted Blackbird Creek case shows what little influence the facts and circumstances of a case can have in restraining the principle it is supposed to embody.
How can the unconstitutional acts of Louisiana, or of any other state which has ports on the Mississippi, or the Ohio, or on any of our other rivers, be corrected, without the action of Congress? And when Congress shall act, the state has only to change its ground, in order to enact and enforce its regulations. Louisiana now imposes a duty upon vessels for mooring in the river opposite the city of New Orleans, which is called a levee tax, and which, on some boats performing weekly trips to that city, amounts to from $3000 to $4000 annually. What is there to prevent the thirteen or fourteen states bordering upon the two rivers first-named, from regulating navigation on those rivers, although Congress may have regulated the same at some prior period? I speak not of the effect of this doctrine theoretically in this matter, but practically. And if the doctrine be true, how can this court say that such regulations of commerce are invalid? If this doctrine be sound, the passenger cases were erroneously decided. In those cases there was no direct conflict between the acts of the states taxing passengers and the acts of Congress.
From this race of legislation between Congress and the states, and between the states, if this principle be maintained, will arise a conflict similar to that which existed before the adoption of the Constitution. The states favorably situated, as Louisiana, may levy a contribution upon the commerce of other states which shall be sufficient to meet the expenditures of the states.
The application of the money exacted under this act of Pennsylvania, it is said, shows that it is not raised for revenue. The application of the money cannot be relied on as showing an act of a state to be constitutional. If the state has power to pass the act it may apply the money raised in its discretion.
I think the charge of half-pilotage is correct under the circumstances, and I only object to the power of the state to pass the law. Congress, to whom the subject peculiarly belongs, should have been applied to, and no doubt it would have adopted the act of the state.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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