The Essentials of American Constitutional Law — John Shaqi
The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
61. The object in delegating to Congress the power to regulate
commerce—a delegation without limitations—was to insure uniformity
against discriminating State legislation.[155] The large and
fundamental purposes of the people of the United States in establishing
a national government are cited in the Preamble to the Constitution.
Unless the power to regulate commerce with foreign nations and among
the several States was delegated to Congress, these fundamental
purposes could not be realized.[156] It is a nice question: When has
the commercial power of the United States over a commodity ceased
and the power of the State commenced? The Supreme Court answers: The
federal commercial power continues until the commodity has ceased to
be the subject of discriminating legislation by reason of its foreign
character. That power protects it even after it has entered the State
from any burdens imposed by reason of its foreign origin.[157] Any
article brought into a State, as an article of commerce, from another
State,—that is from another political jurisdiction possesses “foreign
character.” The principle involved here may thus be stated: (1) The
Constitution having given Congress power to regulate commerce with
foreign nations and among the several States, that power is necessarily
exclusive whenever the subjects of it are national in their character,
or admit only of one uniform system, or plan of regulation. (2)
Where the power to regulate is exclusively in Congress, the failure
of Congress to make express regulations indicates its will that the
subject shall be left free from any restrictions or impositions; and
any regulation of the subject by the States, except only in matters
of local concern, is repugnant to such freedom. (3) The only way in
which commerce between the States can be legitimately affected by State
laws is when, by virtue of its police power, and by its jurisdiction
over persons and property within its limits, a State provides for
the security of the lives, limbs, health, and comfort of persons and
the protection of property. But these police regulations, affecting
commerce only incidentally,—such as (for example) the establishment
and regulation of highways, canals, railroads, and wharves by taxation
as forming part of the mass of property within the State,—must be
strictly internal regulations, not imposing taxes on persons or
property passing through the State, or coming into it for a temporary
purpose and forming no part of the common mass of property within its
jurisdiction. Any State regulation which discriminates adversely to the
persons or property of other States is an unauthorized interference
with the power of Congress over the subject.[158]
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