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Show -36- like "exclusive" and "concurrent," "direct" and "indirect," have only served to confuse* To discard them will tend to clarify. They are labels of a re- sult, and not instruments for the solution of a problem. The history of the Commerce Clause is a thrice-told tale. But the na- ture of the mischief against which it was devised and which has shaped its development is too frequently overlooked. Madison makes it perfectly clear that behind the grant to Congress lay not exclusion of action by the States, but restrictions upon them* "... It is very certain that it (the power to regulate commerce among the several States) grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." J-30 A hundred years have inevitably brought greater reliance on "the reme- dial power" of the general government; they have not altered the power of the States in default of action by Congress, At the core of the whole problem is the fact that the regulation of the infinite expanse of interstate commerce cannot be subjected to one legisla- tive authority. Continuously since 1789* State legislation has busied it- self with interstate commerce.131 The States may regulate "commerce among the States" because they must always with the power of Congress to gainsay through legislation, and the power of the Supreme Court to annul through litigation. Policy undisguised invokes Congressional aetion; the .fom and temper of adjudication disguises the large measure of policy implicit in judicial determination. In this field of constitutional adjustment the traditional technique of judicial empiricism^ is peculiarly appropriate. it imperative, or advisable, to leave the determination of their liability to the courts; that litigation in States and jurisdictions remote from that in which the cause of action arose entails absence of employees from their customary occupations; and that this impairs efficiency in operation, and causes, directly and indirectly, heavy expense to the carriers* these are matters of common knowledge. Facts, of which we, also, take judicial notice, indicate that the burden upon interstate carriers imposed specifically by the statute here assailed is a heavy one; and that the resulting obstruc- tion to commerce must be serious. (A message, toted February 2, 1925* ot the Governor of Minnesota to its Legislature, recites that a recent exami- nation of the calendars of the district courts in 67 of the 87 counties of the State disclosed that in those counties there were then pending 1,020 personal injury cases in which non-resident plaintiffs seek damages ag- gregating nearly $26*000,000 from foreign railroad corporations which do not operate any line within Minnesota)." 130Letter of Madison to J..C. Cabell of Feb. 13, 1829, 3 Farrand, Records of the Constitutional Convention (19U) U78. l^lSee e« g. infra notes 136, 139-11+2. 132Pound, Spirit of the Common Law (1921) ch. !• |