include shipping or navigation; much less
does it include the fisheries. Yet it never has been contended, that
they are not the proper objects of national regulation; and several acts
of Congress have been made respecting them. * * * [Furthermore] if it be
admitted that national regulations relative to commerce, may apply it as
an instrument, and are not necessarily confined to its direct aid and
advancement, the sphere of legislative discretion is, of course, more
widely extended; and, in time of war, or of great impending peril, it
must take a still more expanded range. Congress has power to declare
war. It, of course, has power to prepare for war; and the time, the
manner, and the measure, in the application of constitutional means,
seem to be left to its wisdom and discretion. * * * Under the
Confederation, * * * we find an express reservation to the State
legislatures of the power to pass prohibitory commercial laws, and, as
respects exportations, without any limitations. Some of them exercised
this power. * * * Unless Congress, by the Constitution, possess the
power in question, it still exists in the State legislatures--but this
has never been claimed or pretended, since the adoption of the federal
Constitution; and the exercise of such a power by the States, would be
manifestly inconsistent with the power, vested by the people in
Congress, 'to regulate commerce.' Hence I infer, that the power,
reserved to the States by the articles of Confederation, is surrendered
to Congress, by the Constitution; unless we suppose, that, by some
strange process, it has been merged or extinguished, and now exists no
where."[473]

FOREIGN COMMERCE; PROTECTIVE TARIFFS

Tariff laws have customarily contained prohibitory provisions, and such
provisions have been sustained by the Court under Congress's revenue
powers (_see above_) and under its power to regulate foreign commerce.
Speaking for the Court in University of Illinois _v._ United
States,[474] in 1933, Chief Justice Hughes said: "The Congress may
determine what articles may be imported into this country and the terms
upon which importation is permitted. No one can be said to have a vested
right to carry on foreign commerce with the United States. * * * It is
true that the taxing power is a distinct power; that it is distinct from
the power to regulate commerce. * * * It is also true that the taxing
power embraces the power to lay duties. Art. I, Sec. 8, cl. 1. But
becau