ful exercise" by a State of its police power, has been set aside by the courts time and time again. However, the greatest security for the doctrine of the supremacy of national treaties over all State laws, constitutions, prerogatives, and authorities whatsoever, is to be found, as I have hinted above, in its entire harmony with the general doctrine of the national Supreme Court nowadays, which tends more and more distinctly to return to the basis provided by Marshall's construction of the Constitution. I do not need to show how since the latter eighties the Supreme Court has, by its ever broadening interpretation of the final clause of the opening section of the Fourteenth Amendment, brought State legislation generally under its supervision in the interest of individual rights and so has withdrawn from the States' police power, even when not competing with national power, any aspect of sovereignty that that power was perhaps entitled to wear before the Fourteenth Amendment was added to the Constitution. 38 The only thing I intend to do, with a view to exhibiting the supremacy of treaties as of the warp and woof of the entire fabric of our constitutional jurisprudence to-day, is to demonstrate clearly that the same quality attaches to the exercise by Congress of one of its enumerated powers, its power, namely, to regulate commerce. The general tendency of the Court under Taney was, as we have already seen, to regard Congress' ' 38 * J. Peckham in Lochner v. New York, 198 U. S. 45 (1905). power over commerce as limited, if not by the totality of the police powers of the States, at least by an inner core thereof. By the decision of the same tribunal in Cooley v. the Board of Wardens it was settled further that there was correspondingly an important field of commercial regulation which the States could not enter, even in the absence of congressional legislation, such field having been assigned by the Constitution exclusively to Congress. The principle of national supremacy in connection with congressional legislation regulating commerce was confined, in the minds of the majority of the Bench certainly, to that small area of power over which the States were supposed to have "concurrent jurisdiction" until Congress should choose to occupy the field. This general theory of the relation of the national power in reference to commerce to the State's power of police is, however, to-day materially different. It is still recognized that Congress' power is in certain references exclusive, and indeed the dimensions of the field thus kept clear for national authority against the day when it shall choose to enter there, tend ever to expand. At the same time it is still acknowledged also that the States may often act in a way touching commerce, until Congress acts positively and so supersedes State action. But, and here is the change in theory, it is held that the right of the States so to act rests, not upon their possession of a power over foreign and inter-state commerce concurrent with Congress' 196 NATIONAL S ful exercise" by a State been set aside by the courts However, the greatest sec the supremacy of national laws, constitutions, prerog whatsoever, is to be found, in its entire harmony with the national Supreme Court more and more distinctly to 1 vided by Marshall's construc tion. I do not need to show eighties the Supreme Court ha ing interpretation of the final section of the Fourteenth Amer legislation generally under its terest of individual rights an from the States' police power, peting with national power, any that that power was perhaps en the Fourteenth Amendment was tution. The only thing I inten to exhibiting the supremacy of warp and woof of the entire fab tional jurisprudence to-day, is to that the same quality attaches Congress of one of its enumerated namely, to regulate commerce. The general tendency of the Co was, as we have already seen, to **J. Peckham in Lochner v. New York, 38 is of State origin, a di at an attempt to define th per of the State in reference to that per power over commerce which Sat power from congressional invasion we aliis in a wise affected by the circumsta All this can be a plain by a single illusi The price if i spre mic with ongeception raging was comedies of the mas Bench teal for small are of which the Sa e sped to have Congress occupy the fell. This general ferry of the for national aunty at the day when it dall choose to ere end ever to expand. At the same fine all owledged also that the States may natin a way touching commence until Conges as pesty and so amperedes State antin Babes he dog in henry, not apo j and inter-de power, but upon simply their general power of police, any exercise of which, none the less, is acknowledged to be subordinate to and supplantable by a constitutional exercise by Congress of its power to regulate commerce. In short, the doctrine of Gibbons v. Ogden is completely restored to-day. It is true, that one will frequently come upon expressions by the Court that seem to indicate that it still adheres to the idea that a hard and fast line may be drawn between congressional and State power, but such expressions are almost invariably susceptible of one explanation, i.e., they occur in decisions in which the legislation under review is of State origin, and are all aimed, therefore, at an attempt to define the police power of the State in reference to that portion of congressional power over commerce which is deemed to be exclusive and not at all with a view to securing State power from congressional invasion. In short, the tables of constitutional construction have to-day been turned: it is the National Government whose power over commerce is in part exclusive, while national legislation which is otherwise valid is in no wise affected by the circumstance of its collision with State legislation in exercise of the police power. 39 All this can be made plain by a single illustration. In a series of four decisions in the late eighties and 39 See, for example, Railroad Co. v. Husen, 95_U. S. 465; Smith v. Alabama, 124 U. S. 508; Minnesota v. Barber, 136 U. S. 313; Hennington v. Georgia, 163 U. S. 299. Cf. J. Brewer in U. S. v. Keller, 213 U. S. 138. |