The States are prohibited by the Constitution from making any regulations of foreign commerce. Consequently, all regulations made by the States are null and void, no matter what the motive of the States may have been, and it requires no law of Congress to annul such laws or regulations. This was decided by the Supreme Court of the United States, long ago, in what are known as The License Cases. The opinion may be found in the 5th of Howard, 583.
"The nullity of any act inconsistent with the Constitution, is produced by the declaration that the Constitution is supreme."
This was decided by the Supreme Court, the opinion having been delivered by Chief Justice Marshall, in the case of Gibbons vs. Ogden, 9 Wheat, 210.
The same doctrine was held in the case of Henderson et al., vs. Mayor of New York, et al., 92 U. S. 272—the opinion of the Court being delivered by Justice Miller.
So it was held in the case of The Board of Liquidation vs. McComb—2 Otto, 541.
"That an unconstitutional law will be treated by the courts as null and void"—citing Osborn vs. The Bank of the United States, 9 Wheaton, 859, and Davis vs. Gray, 16 Wallace, 220.
Now, if the legislation of Congress must be "corrective," then I ask, corrective of what? Certainly not of unconstitutional and void laws. That which is void, cannot be corrected. That which is unconstitutional is not the subject of correction. Congress either has the right to legislate directly, or not at all; because indirect or corrective legislation can apply only, according to the Supreme Court, to unconstitutional and void laws that have been passed by a Stale; and as such laws cannot be "corrected," the doctrine of "corrective legislation" dies an extremely natural death.
A State can do one of three things: 1. It can pass an unconstitutional law; 2. It can pass a constitutional law; 3. It can fail to pass any law. The unconstitutional law, being void, cannot be corrected. The constitutional law does not need correction. And where no law has been passed, correction is impossible.
The Supreme Court insists that Congress can not take action until the State does. A State that fails to pass any law on the subject, has not taken action. This leaves the person whose immunities and privileges have been invaded, with no redress except such as he may find in the State Courts in a suit at law; and if the State Court takes the same view that is apparently taken by the Supreme Court in this case,—namely, that it is a "social question," one not to be regulated by law, and not covered in any way by the Constitution—then, discrimination can be made against citizens by landlords and railway conductors, and they are left absolutely without remedy.
The Supreme Court asks, in this decision,