The Wilson Act and the Constitution gate the power to regulate commerce, or to exercise any power reserved to the states, or to grant a power not possessed by the states, or to adopt state laws. It has taken its own course and made its own regulation, applying to these subjects of interstate com merce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property. . . . Congress did not use terms of permission to the state to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original con dition, created by the absence of a specific utterance on its part." This kind of logic is sophistical. It discloses a legal refinement with which the public have entirely lost patience and which is largely responsible for the present lack of confidence in the courts, for the charge so often made, that "that may be in the law, but it is not justice or common sense." It could have been the result of no other conclusion and belief than that the case of Leisy v. Hardin had gone too far and that there was a certain measure of home rule which had to be respected. Either the court had to face the angry hostility of Kansas, Iowa, North Dakota, and the rapidly increasing number of prohibition states and sanction the Wilson Bill, or overrule the cases of Leisy v. Hardin and Bowman v. Railway Company. But their rule had been not to overrule even at the expense of logic. In re Rahrer therefore must be reconciled and the Wilson Bill sustained. Hence the reasoning that in the Wilson Act Con gress was not re-delegating power, but merely announcing a rule that the state laws should apply. But Congress in the act in question had not said what those laws should be. They could be different in every state. It is too well known that the commerce clause was adopted because the states were jealous of each other and that it was universally con ceded and desired that commerce should
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be free except as restricted by a central and impartial Congress, to need any one to prove that the states would never have voted for a Constitution which should have provided that Congress should have the power to regulate com merce between the several states, "pro vided, however, that if at any time Con gress so desires, it may by act provide that any and all of that commerce may be regulated by the states as they may see fit." If Congress can provide that as soon as liquor comes within its borders a state may do with it as it pleases, it may relinquish its control over every other kind of article. The power to regulate is not exercised by you when you say to another you may regulate as you see fit. Delegatus non potest delegari holds good in constitutional as well as in private law. The reasoning of In re Rahrer, indeed, even if clear to the legal, will never be clear to the average mind. The Constitution of the United States gives to Congress what the courts in Bowman v. Railway Company and Leisy v. Hardin held to be the exclusive power to regulate commerce. "Con gress," to use the language of Judge John J. Jenkins, of Wisconsin, in a recent address before the American Bar Asso ciation—• "surrendered its power of protection so as to permit the state to prevent sale by the im porter. This is a regulation of interstate commerce by the states and a violation of the Constitution, doing indirectly what cannot be done directly. The Supreme Court estab lished the limit, and Congress itself recedes from its constitutional limitations with the approval of the Supreme Court. The act of 1890 transferred the power of regulation from Congress to the states, and it cannot well be said that it is a regulation by Congress when the states are permitted to regulate. It is the power of regulation that is so vital and important, not whether a given act is a regu• Reports of Am. Bar. Assoc., vol. xxix, pp. 418, 444.
