Page:Harvard Law Review Volume 32.djvu/85

51 THE CHILD LABOR LAW CASE 51 trafl&c exists, and are so recognized by the usages of the commercial world, the laws of Congress and the decisions of courts, is not denied. Being thus articles of commerce, can a State, in the absence of legisla- tion on the part of Congress, prohibit their importation from abroad or from a sister State?" The court continued as follows: ^ "To concede to a State the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people of a State, represented in the state legislature, the power to regulate commercial intercourse between the States, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect Union which the Constitution was adopted to create." The last quotation is approved in Schollenherger v. Pennsyl- vania,^"^ holding void a state statute which forbade the sale of oleomargarine in the original package which was brought into the state from without. On page twenty-five the court said that the statute substantially prohibited the introduction of a pure article and thereby interfered with interstate commerce.^^ On the basis of these decisions, state courts have been clear that state statutes, prohibiting shipment into the state from other states of convict-made goods, are invalid.'^^ Yet, following the Child Labor Law Case, the Congressional prohibition of importa- tion of convict-made goods, which has stood since the act of August 27, 1894,^° is ultra vires, since the goods are harmless. Let the subject matter be child-made goods, and let the words of the statute prohibit their transportation across state lines; the goods, the journey, and the governing rule the same; if a state legislature enacts the act, it is a regulation of interstate commerce M Page 125. 27 J7J u s. i (1898). and Mimiesota v. Barber, 136 U. S. 313 (1809), are cases of state regulations of inter- state commerce in sound commodities such as wholesome beef and wheat flour, with the additional element that the regulations substantially discriminated against in- terstate commerce, an element entirely wanting in the Husen, Schollenherger, and Leisy cases. 211 Mass. 604 (191 2). »« C. 349, 28 Stat. 509, 552.
 * « Brimmer v. Rebman, 138 U. S. 78 (1891), Voight v. Wright, 141 U. S. 62 (1891),
 * » People V. Hawkins, 157 N. Y. i, 51 N. E. 257 (1898); Opinion of the Justices,