520 HASTINGS—POLICE POWER OF THE STATE. [June 19, 
had to give way. The commercial power in its ‘‘ dormant condi- 
tion,’’ as Chief Justice Marshall calls it, proves the stronger. 
It would seem that an admission of the impossibility of making 
any but a practical division of the field of government between 
these two contending powers, and a declaration of the paramount 
character of that of Congress when it should become necessary to 
apply it, such as Taney had made in the License cases, would have 
been more judicious and quite as judicial. Subsequent legislative 
action by both Congress and the states and later decisions seem 
clearly now to show this. The determining on what conditions 
beer should be sold in the towns of Iowa would certainly seem 
more of a local than an interstate or international matter. 
If it be said that with permission to the states, in the absence of 
Congressional action, to exclude intoxicants they might exclude 
other things also and stop commerce, it may be answered that no 
such alarm was felt in the case of Kidd vs. Pearson. Nobody 
grew afraid that, if the state was permitted to stop the making of 
liquors for export, while permitting them to be made for certain 
home uses, it might go on and forbid the making cf other things 
for export, either generally or to particular states, and so put an 
embargo on outgoing commerce. 
The fourteenth amendment can be relied upon to prevent 
any such promiscuous interference with the rights of the people. 
Besides, we have section 2 of article iv of the constitution, that 
the citizens of each state shall be entitled to all the privileges and 
immunities of citizens in the several states. Chief Justice Mar- 
shall had given the true precedent in ’ Wilson vs. Blackbird Creek 
Marsh Company. 
Justice Gray in his dissenting opinion, by the abstract he gives 
of the *License cases, shows even more clearly than those opinions 
themselves how the position had changed since 1847. ‘The real 
question then under discussion was not the validity of the laws— 
all agreed on that—but whether Congress had the power to act if 
it wished ; whether it was not so exclusively a matter of state regu- 
lation that Congress could not touch it. Now the question was 
whether it was not so exclusively a matter of commercial regula- 
tion that the state must keep hands off, and the latter was the con- 
clusion. 
While Judge Gray cites some cases holding that the police power 
12 Pet., 245 (1829). 25 [How., 504 (1847). 
5 ) 504 (1847 
