(concurring). I fully concur in the foregoing opinion, and the little now to be added is intended merely to accentuate my acceptance of it.
It was held in the Lottery Case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492, that the power of Congress to regulate commerce among 'the states is plenary, and is subject only to such limitations as the Constitution imposes upon its exercise; but it was not held that the power committed to Congress to prescribe the rules by which interstate commerce is to be governed authorizes the interdiction of its pursuit by any person or persons, natural or artificial, without regard to the character of the traffic sought to be proscribed. It was decided, it is true, that the prohibition of tlje carriage of lottery tickets is an “appropriate mode for the regulation of that particular kind of commerce”; but it was not decided that prohibition, apart and distinct from regulation, may be ordained, or that as a mode for regulation it would universally, or even generally, be appropriate. On the contrary, it was said that:
“In determining whether regulation may not under some circumstances properly take the form or have the effect of prohibition, the nature of the Interstate traffic * * * cannot be overlooked.”
Where it is “a kind of traffic which no one can be entitled to pursue as of right,” its pursuit by any one may be prevented. This the Lottery Case has established; but that a common carrier may be forbidden to transport from one state to another any article or commodity, however useful and inoffensive, which Congress may choose, no matter with what motive, to exclude from such transportation, neither the Lottery Case nor any other bas determined.
1 he prohibitory intent of the piece of legislation under consideration is too plain for disavowal, and the suggestion that what it prohibits is not interstate commerce, but interstate transportation by a railroad company of commodities which it has produced, etc., is delusive. The question is not whether the carriage from state to state of coal produced by the carrier is interstate commerce, for of course it is, but whether, being a kind of commerce which is not. inimical to safety, health, oi morals, and which, therefore, any one is entitled to pur*250sue “as of right,” Congress may restrict a railroad company’s interstate transportation of coal to coal not mined or owned by it and in which it has no interest. Any such restriction, whatever it may be •called, in its nature and effect is discriminative prohibition; and that the restrictive provision now in question was enacted, not actually for the regulation of interstate commerce, but really to coerce the conformity of intrastate business with a “policy” approved by Congress, seems practically to be admitted, and could not, with candor, be denied.
“While every possible presumption is to be indulged in favor of the validity of a statute, the courts must obey the Constitution rather than the lawmaking department of government,” and they have been charged with no duty more exalted or imperative than that of resolutely resisting the assumption by that department of any power not delegated to it by the Constitution, let the pretext or ostensible object be what it may. No court has authority, under the guise of interpretation, to change the Constitution for the purpose of meeting a supposed requirement of present conditions, and the covert tendency of any usurpation of such authority would inevitably be to transform the government of enumerated powers which the Constitution established into a government with all power vested in its legislative and executive branches.
But there are rights not derived from the Constitution, though they may be secured by it, which in any free government must be conceded to be beyond invasion by any of its departments (Loan Association v. Topeka, 87 U. S. 662, 22 L. Ed. 455), and the inherent right of.the states to unrestricted innoxious commercial intercourse never has been relinquished nor made dependent upon the sufferance of the body to which its regulation was confided, not for its suppression in whole or in part, but to foster its benefits and preclude its obstruction. The right itself was “retained by the people,” and by no subterfuge can any of the people, whether incorporate or not, be deprived of it. Moreover, the states, subject only to the powers delegated to the United States by the Constitution or prohibited by it to the states, have severally the right, within their respective geographical limits, to the administration of their own law for the maintenance and defense of life, liberty, and property; and consequently Congress, unless in aid of the unfeigned exercise of a power possessed by it, has no authority whatever to divest, limit, or impair any property right which competent state law recognizes and protects. Yet we are confronted in these cases with an attempt to subvert by congressional edict the right to use and enjoy property of the utmost value, which was acquired and has long been held under state law of unquestionable validity, and to withhold from the pe.ople of many of the states a commodity which has aptly been characterized as “a prime necessity of life and an essential of civilization.” Such legislation is incompatible with free government (Loan Ass’n v. Topeka, supra), and, in my opinion, it is simply impossible to find support for it in a grant of power to regulate commerce, coupled with a mandate that private property shall not be taken for public use without just compensation, and that *251no person shall be deprived of liberty or property without due process of law. The inclination sometimes manifested to centralize power in the general government results in great measure, no doubt, from the apparent expediency of committing to it the correction of ills which it is supposed that the states cannot so readily repress; but the achievement of no presently desired end, however salutary, can justify the infraction of our fundamental law, or warrant its perversion by insidious construction. The Constitution of the United States is a written instrument, not a progressive development, and the often quoted epigram that “constitutions are not made but grow,” should not apply to it.