Roger B. Taney

“ Where can such a power also be safer lodged than with those public bodies, or States, who are themselves to be the greatest sufferers in interest and character by an improper use of it? It is should happen at any time to be exercised injudiciously, that circumstance would furnish a ground for an appeal rather to the intelligence and prudence of the State, in respect to its modification or repeal, than an authority for this court, by a writ of error, to interfere with the well-considered decision of a State court, and reverse it, and pronounce a State law null and void, merely on that account. ”

“ This power, if it be permitted to the States, will be abused. There is no safety for the whole people in placing it anywhere save in those hands where the constitution has placed it. If, on any pretence, however specious, for the purpose of advancing any cause, however popular or praiseworthy, this function of the general government, so vital to its character, may be usurped by a State legislature, the barrier between the two powers is broken down, and the purposes of the Union itself defeated. ”

“ It is disapproved by man, and stands condemned by the great moral Judge of the universe, whose purity cannot countenance such manifest and admitted wrong. It is the foul parent of immorality and crime, and the prolific source of unspeakable misery and sorrow to innumerable individuals and families. And is it to be contended that it is repugnant to the constitution of the United States to restrain and prohibit such inhuman traffic?-to extirpate a moral crime, which grows blacker and more hideous the longer it is contemplated, and the more its horrible effects become visible? ”

“ It is obvious, that the States may and do every day tax residents for their personal property, whether in the form in which it has been imported, and even lying in the custom-house, or in which it is to be exported, on the wharf, or in the vessel, just as if the import or export was confused with the mass of property in the State; and no one deems such a tax as a tax upon imports or exports, in the sense of the prohibition of the constitution, or in any proper sense whatever. ”

“ It is equally clear, that the power of Congress over this subject does not extend further than the regulation of commerce with foreign nations and among the several States; and that beyond these limits the States have never surrendered their power over trade and commerce, and may still exercise it, free from any controlling power on the part of the general government. Every State, therefore, may regulate its own internal traffic, according to its own judgment and upon its own views of the interest and well-being of its citizens. ”

“ Is it their purpose to debauch public morals, to encourage a lavish waste of property, and to multiply crimes, from the mercenary consideration of deriving revenue from a process of degradation?
Does the policy of the United States war with the best interests of society, and are they anxious for revenue at such sacrifices? What proof is there of such an unnatural state of things?
It is supposed, that the United States countenance an indiscriminate traffic, because they permit wines and spirits to be imported, and lay upon them a duty. ”

“ It is the undoubted and reserved power of every State here, as a political body, to decide, independent of any provisions made by Congress, though subject not to conflict with any of them when rightful, who shall compose its population, who become its residents, who its citizens, who enjoy the privileges of its laws, and be entitled to their protection and favor, and what kind of property and business it will tolerate and protect. ”

“ For if the mere grant of power to the general government was in itself a prohibition to the States, there would seem to be no necessity for providing for the supremacy of the laws of Congress, as all State laws upon the subject would be ipso facto void, and there could therefore be no such thing as conflicting laws, nor any question about the supremacy of conflicting legislation. ”

“ This is altogether arbitrary, and must depend upon the discretion of the law-making power,-the same discretion that imposes a tax, defines offences and prescribes their punishment, and which controls the internal policy of the State. Will it be contended that the legislature cannot exercise the power, as it may be exercised beyond the proper limit? This logic is not good when applied to the practical operations of the government. The argument is, power may be abused, therefore it cannot be exercised. What power dependent on human agency may not be abused? ”

“ The States stand properly on their reserved rights, within their own powers and sovereignty, to judge of the expediency and wisdow of their own laws; and while they take care not to violate clearly any portion of the constitution or statutes of the general government, our duty to that constitution and laws, and our respect for States rights, must require us not to interfere. ”

“ It is unquestionably no easy task to mark by a certain and definite line the division between foreign and domestic commerce, and to fix the precise point, in relation to every important article, where the paramount power of Congress terminates, and that of the State begins. The constitution itself does not attempt to define these limits. They cannot be determined by the laws of Congress or the States, as neither can by its own legislation enlarge its own powers, or restrict those of the other. ”

“ But if such a prohibition existed as to sales, what act of Congress would it come in collision with? None has ever been passed which professes to regulate or permit sales within the States as a matter of commerce. A good reason exists for this, as the subject of buying and selling within a State is one as exclusively belonging to the power of the State over its internal trade, as that to regulate foreign commerce is with the general government, under the broadest construction of that power. ”

“ But after articles have come within the territorial limits of States, whether on land or water, the destruction itself of what contains disease and death, and the longer continuance of such articles within their limits, or the terms and conditions of their continuance, when conflicting with their legitimate police, or with their power over internal commerce, or with their right of taxation over all persons and property under their protection and jurisdiction, seems one of the first principles of State sovereignty, and indispensable to public safety. ”

“ Without, however, pursuing this reasoning, which might be easily extended, I deny that a diminution in the consumption of wines and spirits raises any presumption that the general revenue is impaired by the process. On the contrary, my belief is, that, if the facts were to undergo the severest scrutiny, it would turn out quite otherwise. It has never been maintained that a free use of wines and spirits has any tendency to promote public prosperity, nor is it denied that an excessive use is manifestly prejudicial. ”

“ Upon what basis does it stand, from what power or right in the State is it derived? And I shall contend that it is a regulation of the internal commerce of the State, having for its object the preservation of order, morals, and health, and intended to discourage intemperance and to promote sobriety. And such being its general characteristics, I shall also contend further, that it falls within that class of laws generally called police regulations.
The trade intended to be regulated is completely internal, and spread over the whole territory of the State. ”

“ For, even under a prohibition to sell, a person could import, as he often does, for his own consumption and that of his family and plantations; and, also, if a merchant, extensively engaged in commerce, often does import articles with no view of selling them here, but of storing them for a higher and more suitable market in another State, or abroad. This was the paramount object in the law of Congress, so often cited, as to the importation of kegs of fifteen gallons of brandy,-to have them in proper shape to be reexported and carried on mules in Mexico, rather than to be sold for use here. ”

“ A power to grant licenses it a political power in town councils, and not at all analogous to the cases cited by the counsel for the plaintiff in error. Those were cases of private right, where a mandamus would go to enforce it. Would such a proceeding lie against a town council by a party to whom a license had been refused? But erase from the statute the entire provision vesting any power in the towns to grant licenses, and leave the prohibition upon all sales under ten gallons absolute. This would not be a case of conflict, because it allows of sales at retail as low as ten gallons. ”

“ There is nothing in the nature or form of an article which makes it an import, only something in its history; there is nothing in the nature or form of an article which makes it an export, only something in its destination; and if any thing be specifically taxed as imported, or to be exported, it is a tax upon an import, or upon an export, within the letter and spirit of the constitution. ”

“ It has, indeed, been suggested, that, if a State deems the traffic in ardent spirits to be injurious to its citizens, and calculated to introduce immorality, vice, and pauperism into the State, it may constitutionally refuse to permit its importation, notwithstanding the laws of Congress; and that a State may do this upon the same principles that it may resist and prevent the introduction of disease, pestilence, or pauperism from abroad. But it must be remembered that disease, pestilence, and pauperism are not subjects of commerce, although sometimes among its attendant evils. ”

“ Chief Justice Marshall (Brown v. Maryland, 12 Wheat., 446) , says:-'If this power reaches the interior of a State, and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point where its continuance is indispensable to its value. ”

“ Whether such laws of the States as to licenses are to be classed as police measures, or as regulations of their internal commerce, or as taxation merely, imposed on local property and local business, and are to be justified by each or by all of them together, is of little consequence, if they are laws which from their nature and object must belong to all sovereign states. ”

“ It can neither be admitted nor maintained that the United States, under a general power to regulate foreign commerce, has a right, without restraint, and in defiance of State powers, to import disease and pestilence, to fill the country with infamous persons, or to debauch the public morals. ”

“ Another sect of reformers, by no means despicable in point of numbers or talents, honestly believe, and strenuously assert, that the use of animal food is an evil which ought not to be tolerated; but may a State, a majority of whose citizens entertain such an opinion, punish with fine and imprisonment the act of selling beef and pork, imported from a sister State? ”

“ It will not for a moment be contended, that, while the constitution prohibits any State from laying any imposts or duties on imports or exports, the right is left to the several States to prohibit importations altogether. The power of regulating imports from foreign countries falls so directly and inevitably under the power to regulate commerce, that it has never been denied to belong to Congress. ”

“ If Congress has the power to regulate a subject-matter, a State cannot interfere to oppose or impede such regulation. The general government, though limited, is supreme as to those objects over which it has power. ”

“ And no one government, or its agents or navigators, possess any right to make another State, against its consent, a penitentiary, or hospital, or poor-house farm for its wretched outcasts, or a receptacle for its poisons to health, and instruments of gambling and debauchery. ”

“ I have already dwelt sufficiently on this point, and have proved that intemperance is everywhere deprecated and deplored, that the world has raised its voice in remonstrance against an indiscriminate traffic in wines and spirits, and it seems to me that if health, morals, usefulness, and respectability are worthy of public consideration, and merit protection against an insidious foe, the legislature would be criminally guilty in wholly disregarding a matter of such obvious importance; and that the exercise of the power needs no justification. ”

“ The States, resting upon their original basis of sovereignty, subject only to the exceptions, stated, exercise their powers over every thing connected with their social and internal condition. A State regulates its domestic commerce, contracts, the transmission of estates, real and personal, and acts upon all internal matters which relate to its moral and political welfare. Over these subjects the federal government has no power. ”