The License Cases

Explanation and Analysis of the Document

The collective License Cases consolidated three different cases that had been tried separately in lower courts: Thurlow v. Massachusetts, Fletcher v. Rhode Island, and Peirce v. New Hampshire. Each of these cases concerned the legality of state licensing statutes for imported liquor, which, it was argued, violated constitutionally granted federal control of interstate commerce. The Taney Court unanimously upheld all three state statutes; however, there was no opinion of the Court per se. Six justices wrote nine separate opinions. This multiplicity of views reflected, in part, the composite nature of the License Cases, but it was also a product of national ferment over state control of slavery, the most hotly debated issue of the era.

Chief Justice Taney's opinion is most notable for its elaboration of the police power. In legal terms, police power does not refer specifically to the power of police forces, although such power is included in the concept. Rather, police power refers to the power of a state or municipality to enact legislation that restricts the activities of others, whether individuals or businesses, to protect public health, safety, and welfare, to prevent fraud, and to promote the economic, social, and moral interests of the citizens within its jurisdiction. The maintenance of a police force is just one of many mechanisms for doing so. The issue that early courts frequently had to deal with was the unclear relationship between state police powers and the power of the federal government. At times, these powers seemed to conflict, and the Tenth Amendment to the Constitution—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—was not always clear. In the License Cases, Taney dealt with the potential conflict between state and federal law as it pertained to matters of foreign commerce.

Taney had first noted the existence of state police powers in his opinion in the Charles River Bridge case, where the Court declined to intrude upon a power so essential to the public well-being and prosperity. For him, police powers and sovereignty were one and the same, and the states retained all powers necessary to internal government that did not conflict with constitutionally granted federal authority. The police power was, in fact, fundamental to the expansion of government during the age of Andrew Jackson, when such power offered the means of enforcing public interest. Taney recognizes the inherent conflict not only between federal and state government but also between community and individual rights. In both contests, he says, public welfare almost invariably trumps other, competing interests—and police powers are the states' basic tool for controlling property for the betterment of society.

Taney begins by outlining the issue at hand:

whether a state is prohibited by the Constitution of the United States from making any regulations of foreign commerce or of commerce with another state, although such regulation is confined to its own territory and made for its own convenience or interest and does not come in conflict with any law of Congress.

After noting that other members of the Court might disagree, Taney states his view: “The mere grant of power to the general government cannot … be construed to be an absolute prohibition to the exercise of any power over the same subject by the states.” He goes on to note that when the U.S. Congress wanted to preserve its exclusive jurisdiction over a matter of law, it typically said so by explicitly prohibiting the states from taking any action in conflict with congressional mandate, which Congress had not done in the matter at hand.

Taney then elaborates his conclusion by summarizing the legal history of two areas of law, that governing “pilots and pilotage” (an area of maritime law) and that governing “health and quarantine laws.” These matters were relevant to the case at hand because they each had a bearing on foreign commerce. Taney notes that throughout the nation's history, the “maritime states”—that is, seaboard states—had passed various laws regulating maritime activities. These laws had implications for the conduct of foreign commerce, yet the federal government never felt called on to challenge these laws. Taney concludes that if the Court failed to uphold the constitutionality of the challenged laws in the License Cases, the effect would be to render void all such laws passed by the states regulating maritime affairs. Similarly, health and quarantine laws passed in states with ports and harbors had the effect of regulating foreign commerce, yet not only had the federal government not interfered with these laws, it had in fact helped with their enforcement.

After elaborating on the principle that any law, and any Court decision, must be consistent with the Constitution, Taney takes up the matter of the dividing line between Congress's authority to regulate foreign commerce and that of the states. He notes that at some point, imported goods pass into private hands. At that point, those goods are no longer the subject of foreign commerce; they are simply private property, and the federal government has no authority over their disposition. Thus, for example, the Constitution grants Congress the right to levy duties on imported goods, or to regulate the time and place of their importation. But once the goods enter a state, Congress has no constitutional authority to tell the states what to do with them or how to regulate them for the welfare and benefit of their own people.

After the License Cases, the Court would be continually obliged to balance individual rights with the police power. The case also neatly juxtaposed state and federal authority, arriving at a compromise that came to be known as selective exclusiveness, which recognized that the power to control interstate commerce did not belong exclusively to the national government. If the age of Jackson can be said to have advanced states' rights, it did so in large part because the regulation of both commerce and property became, in many instances, the province of police powers. Such would be the state of affairs until the New Deal era of the 1930s, when the balance of power tipped decidedly in favor of the federal government. Long before that, the slavery issue, which brought both property and individual rights into the mix, would prove to be Taney's—and nearly the nation's—undoing.