Page:Harvard Law Review Volume 32.djvu/99

65 THE CHILD LABOR LAW CASE 6$ only when Congress affirmatively established the uniform rule. Under the salutary doctrine of Cootey v. Port Wardens^'' and the Minnesota Rate cases ®^ state statutes based on the so-called police power, even though directly interfering with interstate commerce, are valid when not conflicting with the Congressional rule.®^ It may be the national legislature would exercise its power more fre- quently than in the long run would be politic or expedient. In- expediency, however, is not lack of power, and often a man as legislator must vote against a bill which as judge he can not say is ultra vires. Our history gives little basis for fear that the legislature would regulate interstate commerce matters too frequently. It would be trite to enimierate the matters within the federal field which the Congress has left to the states.^" Curiously, in the Webb-Kenyon Law Case it was asserted as ground of unconstitutionality that if the law were sustained, not undue centralization but decentraliza- tion would result. ^^ The difficulty with the doctrine of absolute constitutional pro- hibition of the regulation of interstate commerce because of the effect on local affairs is not solely that expressed in the McCray decision, ^2 that the distinction between the judicial and the legis- lative powers is destroyed, a matter full of danger to the perma- nence of our institutions; but even more important is the resulting great void in governmental power itself, — the establishment of a zone between nation and state which neither can touch. The re- sult is that the sum total of powers of state and nation is less than the independent states previously had. During the period from 1783 to 1787 the country had experience with the system under which no common authority existed to de- " 12 How. (U. S.) 299 (185 1). «« 230 U. S. 352 (1913). U. S. 613 (1898); Reid v. Colorado, 187 U. S. 137 (1902); Plumley v. Massachusetts, 155 U. S. 461 (1894); Grossman v. Lurman, 192 U. S. 189 (1904); Sligh v. Kirkwood, 237 U. S. 52 (1915). '"^ For conspicuous examples, see as to interstate ferry rates. Port Richmond Ferry Co. V. Hudson County, 234 U. S. 317 (1914), and the utilization of state executive machinery under the Selective Draft Law of May 18, 1917, c. 15, 40 Stat. 76. " Clark Distilling Co. v. West Md. Ry. Co., 242 U. S. 311, 322. " 195 U. S. 27, 54 (1904).
 * ' Asbell V. Kansas, 209 U. S. 251 (1908); Missouri, K. & T. Ry. v. Haber, 169