Page:Harvard Law Review Volume 32.djvu/86

52 52 HARVARD LAW REVIEW

and invalid, whereas if Congress is the enacting body, it is not a regulation of interstate commerce, and invalid.

It is difficult to believe that the adoption of the Constitution has left this great void of governmental authority. If in the dis-tribution of powers between state and nation a large part of the power to regulate interstate commerce has been lost a weakness in the federal system hitherto unsuspected is developed. Prior to 1787 the states individually were all-powerful to prohibit, by impost, embargo, or otherwise, the importation from other states of any kind of commodity. Sovereign authority has always been understood to embrace power to prohibit for commercial reasons the importation from other states of harmless articles.31 Con-spicuous illustrations of the exercise of such power by the original states between 1783 and 1787 were in the embargoes against com-modities brought by British vessels, a matter referred to here-inafter in another connection. There is highest evidence of the existence of such power. The Articles of Confederation state:

"Art. 9. Sec. i. The United States, in Congress assembled, shall have the sole and exclusive right and power of . . . entering into treaties and alliances; provided that no treaty of commerce shall be made, whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own peo-ple are subjected to, or from prohibiting the exportation or importation of any species of goods, or commodities, whatsoever."

It was largely because the power was exercised by each state against harmless products of other states with the selfish view of the effect of the importation upon the commerce and manufacture of the importing state that the Constitution was framed. It was not enough to forbid the states from prescribing rules for the con-duct of such interstate shipments. As has been frequently recog-nized, not part but all the power they had over shipments from one state to another of any character of commodity was vested expressly in the federal government.

As was said in Gibbons v. Ogden32 "The 'power to regulate commerce,' here meant to be granted, was that power to regulate commerce which previously existed in the States.


 * 31 See Sligh v. Kirkwood, 237 U. S. 52, 59, 61 (1915).
 * 32 9 Wheat. (U. S.) i, 227 (1824).