366 BURR— THE TREATY-MAKING POWER [April 20, 



Congress in pursuance of the Constitution, they affect the subject, and each 

 other, like equal opposing powers. But the framers of our Constitution 

 ' foresaw this state of things, and provided for it, by declaring the supremacy 

 not only of itself, but of the laws made in pursuance of it. 



" The nullity of any Act, inconsistent with the Constitution is produced 

 by the declaration, that the Constitution is the supreme law. The appro- 

 priate application of that part of the clause which confers the same 

 supremacy on laws and treaties, is to such acts of the State legislatures as 

 do not transcend their powers, but though enacted in the execution of 

 acknowledged State powers, interfere with, or are contrary to, the laws of 

 Congress, made in pursuance of the Constitution, or some treaty made under 

 the authority of the United States. In every such case, the Act of Congress, 

 or the treaty, is supreme; and the law of the State, though enacted in the 

 exercise of powers not controverted, must yield to it.""" 



With this one decision and this one exposition of the relations 

 between the Federal powers and the State police power, a complete 

 understanding of the subject might well begin and end. But as an 

 historical review is essential here, we may carry with us Marshall's 

 words in somewhat the fashion that Matthew Arnold advised the 

 student of poetry to store up in his mind the great utterances of 

 great poets to serve as an infallible test. 



Brown vs. Maryland,^^^ another great constitutional case, was 

 decided in 1827. The State statute had required all importers of 

 foreign goods and all persons selling the same to take out a license. 

 The statute was held unconstitutional, and imported articles were 

 said to remain articles of commerce free from State legislation and 

 subject only to the power of Congress to regulate commerce, so long 

 as they remained in the original unbroken packages in which they 

 were shipped. In the course of his opinion ^Iv. Chief Justice 

 Marshall said : 



" The power to direct the removal of gunpowder is a branch of the 

 police power, which unquestionably remains and ought to remain, with the 

 States. . . . We are not sure, that this may not be classed among inspection 

 laws. The removal or destruction of infectious or unsound articles is, un- 

 doubtedly, an exercise of that power, and forms an express exception to the 

 prohibition we are considering. Indeed, the laws of the United States ex- 

 pressly sanction the health laws of a State.'"^'' 



"' Ibid., pp. 209-11. 



=='12 Wheat., 419 (1827). 



259 



Ibid., p. 442. 



