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away within the state that which the morals and public policy of the state forbade. Is not this practically the result of the Wilson Act and of the cases In re Rahrer and Delamater v. South Dakota, and should it not be definitely stated and the network of conflict and refine ment and faulty logic be removed, even if in order to do so it is necessary to state that former cases have been over ruled? As it is, the cases cannot be reconciled and an attempt to do so only leads to inexplicable confusion. Each new distortion, each new surrender of basic principle and of irresistible logic, paves the way for still further surrender, and makes the law less and less certain. The fundamental fact remains that a reasonable amount of social home rule is absolutely necessary to the perma nence of a federated nation, and that whenever the social policies of a state are really affected, the courts will find some theory by which to abate the exclusiveness of Congressional control. Up to the time of the Bowman case, indeed, there were no decisions which denied to the state this right of selfprotection and of formulating its own social and moral code. It is true that in the early cases, as in the later, the exclusive power to regulate interstate commerce was held to be vested in Congress and in Congress alone,* and that this was later somewhat modified by the recognition of a concurrent power;t that is to say, the power of the state to act until Congress itself had acted on the subject inconsistently with state action. And that later still this con cession was repudiated or modified and the statement made that the concurrent power could never exist in things that • 3 Madison Papers 1585; Passenger Cases 7 How. 283-396; Brown v. Maryland, 12 Wheat. 419 t Wilson v. Blackbird Creek Marsh Co., 2 Peters 245.
were national in their nature and that interstate commerce was one of these.• But up to the time of the Bowman case all of these decisions were in relation to matters and transactions which were fiscal and commercial in their nature, and none of them were in connection with matters in which health or morals were concerned. The decision in the case of Bowman v. C. N. W. Ry. Co., on which the later case of Leisy v. Hardin is based, is not indeed supported by the history and decisions of the past and contains ^a remarkable non sequitur. "If the state of Iowa," the Court says, "may prohibit the importation of intoxi cating liquors from all other states, it may also include tobacco, or any other article, the use or abuse of which it may deem dele terious. It may not choose, even, to he governed by considerations growing out of the health, comfort, or peace of the community. Its policy may be directed to other ends. It may choose to establish a system directed to the promotion and benefit of its own agricul ture, manufactures, or arts of any descrip tion, and prevent the introduction and sale within its limits of any or of all articles that it may select as coming into competition with those which it seeks to protect. The police power of the state would extend to such cases, as well as those in which it was sought to legislate in behalf of the health, peace, and morals of the people. In view of the commercial anarchy and confusion that would result from the diverse exertions of power by the several states of the Union, it cannot be supposed that the Constitution or Congress has intended to limit the freedom of commercial intercourse among the people of the several states." Here the Court failed to recognize the distinctions and demarkations which it itself had frequently made in former decisions. Even the seemingly clinching question, "Can it be supposed that by omitting any express declarations on the subject Congress has intended to • See Leisy v. Hardin and Bowman v. Rail way Co., supra.
