LICENSE CASES 5 Howard 504 (1847)

In three related cases decided the same day, the Court sustained the constitutionality of temperance statutes of states that had restricted the sale of liquor and required all dealers to be licensed. Although the Justices unanimously concurred in the disposition of the cases, six men wrote nine opinions, and there was no opinion for the Court because a majority could not agree on the reasoning. At one extreme Justice john mclean took the position that the dormant powers of Congress under the commerce clause utterly excluded the exercise of concurrent powers by the states; but McLean found that the statutes were not regulations of commerce but reasonable exercises of the police power. At the other extreme Justice peter daniel supported an exaggerated view of concurrent state commerce powers.

Chief Justice roger b. taney ' s view was the least doctrinaire. He observed that two of the three License Cases dealt with the retail sale of liquor that was no longer in the original package and therefore raised no interstate commerce issue. (See original package doctrine.) The third case, however, involved liquor imported in the original package from another state and sold in that unbroken package. Thus the business affected by the state's license law was in interstate commerce. Taney therefore confronted the question "whether the grant of power to Congress is of itself a prohibition to the States, and renders all State laws on the subject null and void." His answer to the question, unlike Chief Justice john marshall 's, was that unless a state act came into conflict with a law of Congress, the state could constitutionally exercise a concurrent commerce power. On the other hand, he muddled his position by arguing that such a power was no more than the police power of the state, which he defined, promiscuously, as "nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions." His refusal to distinguish the police power from the commerce power and other powers left his opinion doctrinally murky, and like the opinions by the other Justices it failed to provide a usable test. At least two state judges, james kent and lemuel shaw, avoided the Supreme Court's quest for a system of definitional categories by suggesting that if Congress did not brush away state legislation, it should be sustained in the absence of an actual or operational conflict with national legislation.

Leonard W. Levy
(1986)