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Congress and State Liquor Legislation
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to prohibit the sale and transportation of game, a subject of common ownership, and such power includes the power to prohibit the transportation thereof into the state.[1]

Now, if we had merely these decisions to take into consideration, I find it difficult to avoid the conclusion that we should be justified in stating, as a general proposition, that the power of a state to prohibit the sale, manufacture and transportation of a given article includes the power to prohibit the transportation thereof into the state. But we know that in Bouman v. Chicago, &c. Ry. Co., and Leisy v. Hardin it was very distinctly held that such power was not included.

I do not propose to argue, as I think it plausibly might be, that Bowman v. Chicago &c. Ry. Co. and Leisy v. Hardin have been overruled by these later decisions. Nor do I propose to deny that language was employed in the opinions in those two cases that is not to be harmonized with the proposition just formulated. What I do propose to show is that, on the facts, those decisions are not out of harmony with such proposition, so that, speaking generally, it is as applicable to intoxicating liquors as to other articles.

That is to say, in view of the particular situation presented in those cases, it failed to apply to intoxicating liquors, because Congress had so legislated as to intoxicating liquors as to make them a subject of interstate commerce, thus putting it beyond the power of the states to exclude them from interstate commerce. So far as I can see, Congress might with like effect, make any other article, say of food or clothing, a "subject of interstate commerce.'

Thus in Leisy v. Hardin,[2] it was said: "Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles we cannot hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations, while they retain that character." In Schollenberger v. Pennsylvania[3], a like result was reached as to oleomargarine, which Congress had recognized "as a proper subject of taxation and as one which was the subject of traffic and of exportation to foreign countries and of importation from such countries." The above language in Leisy v. Hardin was repeated, it being also said: "We think that what Congress thus taxes and recognizes as a proper subject of commerce cannot be totally excluded from any particular state." Not without significance seems the following language in Austin v. Tennessee:[4] "Whatever product has from time immemorial been recognized by custom or law as a fit subject for barter or sale, particularly if its manufacture has been made the subject of federal regulation and taxation, must, we think, be recognized as a legitimate article of commerce."

In this view, it seems obvious what legislation by Congress is most likely to give scope to the power of a state to prohibit the transportation of intoxicating liquors into its territory, Congress might repeal all legislation, having the effect to recognize intoxicating liquors as subjects of interstate commerce. But if this be regarded as impracticable, it seems. to me that the same result might well be attained

by an explicit declaration by Congress

  1. ↑ See Sila v. Hesterberg, 211 U. S. 31 (1908).
  2. ↑ P. 125.
  3. ↑ 171 U. S. 1, 9, 13, 19 (1898).
  4. ↑ 179 U. S. 343, 345 (1900). Here, however, as to cigarettes, the prohibitory power of the state was sustained.
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