The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
But the United States also possesses police power. The line of
demarcation between the State and the national police power follows
closely, if not precisely, the line of demarcation between State power
and national power to regulate commerce.[138] The State has power to
protect itself,—that is, to guard its people against contagious or
infectious diseases, as is exemplified in laws for the inspection
of foods, for forbidding the pollution of streams, for securing
the accuracy of weights and measures, the peace and good order of
communities, the comfort of the inhabitants,—and, in a word,—to
exercise such authority as, were no such authority exercised, the State
would cease being the State.
54. The power granted to Congress to regulate commerce is not a power
granted to the States; it pertains to the United States only. Therefore
Congress has no power to regulate commerce that is not “with foreign
nations, and among the several States, and with the Indian tribes.”
Practically this deprives the State of police power over foreign and
interstate commerce, and deprives the United States of police power
over commerce that is, as to the State, completely internal. To what
extent a State can protect itself from the entrance of paupers, insane
or diseased persons, is a question for determination by the Courts.
If such persons are “commerce” their entrance is a matter within
the jurisdiction of Congress. But the welfare of the people of the
United States is essentially the welfare of the people of the States,
and Congress, in considering that welfare, avoids possible conflict
with State legislation. Thus the immigration laws—all of which are
national—include, or seek to include, these provisions for inspection
which a State would prescribe, in the exercise of its police power for
the health, safety, and general welfare of its own citizens. But here,
too, a dominant principle prevails;
The government of the United States, within the scope of
its powers, operates upon every foot of territory under its
jurisdiction. It legislates for the whole nation, and is not
embarrassed by State lines. Its peculiar duty is to protect one
part of the country from encroachments by another upon the national
rights which belong to all.[139]
Tested by this principle, any State laws conflicting with national
immigration laws are unconstitutional.
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