Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-07-30
TIE ERROR OF THE DECISION.

TIE ERROR OF THE DECISION.
The criticisms on the Supreme Court de-
cision of the original package cases, brought
out by the Congressional debate, has pro-
voked some very sharp retorts from that
portion of the press which is particularly
inimical to prohibitory legislation. 1t is de-
clared by these organs to be extremely in
appropriate fori Congressman to cfiticise the
Supreme Court for laying down the con-
ceded and recognized principles of the
Constitution, as they have been construed by
It's predecessors.
But that is what the Supreme Court did
not do. The criticisms are justified in view
of the fact that this decision of the Supreme
Court specifically reversed the decision of
Mclean in an exactly similar case and
practically denied the reasoning of the
more modern Waite, Bradley, Miller aud
others in case involving the same princi-
pie, with regard to the relation OF State
legislation to interstate commerce. BY so
doing the practice of century has been
subverted. We have not yet realized all
that the logic of the decision would ac-
complish If carried to its fnll extent; but
we have seen enough of it to know that it
completely overthrows some of the most es-
sential powers of the State which were never
before challenged.
The discussion has been carried far enough
to point one fact that involves the very
foundation of the Supreme Courts logic;
and vet which has SO far been entirely over
looked in the discussion. It is q common
form Of stating the case to say that the
Constitution forbids State government to
regulate interstate commerce. Yet it
would puzzle anyone who makes that state
ment to name the section and clause in
which that prohibition is made, for the
simple reason that no such prohibition ex-
lists. OF course the Supreme Court was
aware of that fact and the majority of
opinion rests its ruling on the unexpressed
argument, that because the Constitution
gives Congress the power ito regulate COM
merce with foreign nations and among the
several States" therefore no State can touch
Interstate commerce with its legislation.
But see where this leads. In the same Sec
tion that gives this power to Congress, and
under the same granting clause, that instru-
ment gives Congress the power "to establish
rules of naturalization and uniform laws on
bankruptcy" The logic that forbids States
to regulate Interstate commerce under this
section, would therefore forbid them to
provide for the naturalization of citizens,
and as et r,raeenf xrbop tnora io M potionoI
bankruptcy law, would forbid the State to
provide for the settlement of insolvencies.
The same section authorizes Congress ''to
provide for calling for the militia to sup
press insurrection" and under the rule that
what is granted to Congress is denied to the
States that must forbid the States to do any
thing of the sort. In short, the logic of the
original package decision will, if legiti-
mately extended, overturn many of the
most essential and undisputed powers of
State legislation.
1t is to be recognized that where there is
Congressional regulation on any of these
subjects State regulation that conflicts with
it must give way. But it is also the COM
mon sense view, that where there is no Con-
gressional legislation on any branch OF these
su bjects, State legislation on such of them
as affects the citizens of the given State, is
proper. That is not only the common sense
view, but it was the view laid down by the
Supreme Court for over century. 1t was
declared by Taney that in the absence Of
any regulation by Congress in the form of
a statute of the United States, the traffic in
liquor might lawfully be regulated by the
State as soon as the liquor was landed in
its territory, "and a tax imposed upon it,
or license required, or the sale altogether
prohibited" The same construction was
laid down in the Granger cases when Chief
Justice Waite ruled, that in the absence of
Congressional regulation, it was within the
power of State to regulate such inter State
commerce as began or terminated within
its boundaries. In the Wabash case OF 1885,
this ruling was reversed in q decision the
logic of which was completely riddled BY
Justice Brsdley's dissenting opinion; and
the first step was taken into the bog of con-
stitutional uncertainties into which the
original package decision causes the nation
to founder.
1t is true that there are some specific pro-
hibitions in connection with this subject
and one of them is peculiarly significant.
1t is that prohibiting any State from levy
ing duties on imports or exports, Except
what may be absolutely necessary for exc
cutting its inspection laws" Inspection
necessarily implies regulation. If the recog-
milton Of State inspection laws does not
carry with it right to regulate interstate
commerce, Subject to the revision and CON-
troll of Congress" as the same section de-
clares, it is difficult to tell what it does
mean.
The fact is that the constitutional prohi-
bition of the States from regulating inter
State liquor traffic is entirely courtmade
constitutional law.