GIBBONS v. OGDEN 9 Wheaton 1 (1824)

Chief Justice john marshall's great disquisition on the commerce clause in this case is the most influential in our history. Gibbons liberated the steamship business and much of American interstate commerce from the grip of state-created monopolies. More important, Marshall laid the doctrinal basis for the national regulation of the economy that occurred generations later, though at the time his opinion buttressed laissez-faire. He composed that opinion as if statecraft in the interpretation of a constitutional clause could decide whether the United States remained just a federal union or became a nation. The New York act, which the Court voided in Gibbons, had closed the ports of the state to steamships not owned or licensed by a monopoly chartered by the state. Other states retaliated in kind. The attorney general of the United States told the Gibbons Court that the country faced a commercial "civil war."

The decision produced immediate and dramatic results. Within two weeks, a newspaper jubilantly reported: "Yesterday the Steamboat United States, Capt. Bunker, from New Haven, entered New York in triumph, with streamers flying, and a large company of passengers exulting in the decision of the United States Supreme Court against the New York monopoly. She fired a salute which was loudly returned by huzzas from the wharves." Senator martin van buren (Democrat, New York), who had recently advocated curbing the Court, declared that even those states whose laws had been nullified, including his own, "have submitted to their fate," and the Court now justly attracted "idolatry," its Chief respected as "the ablest Judge now sitting upon any judicial bench in the world." For a Court that had been under vitriolic congressional and state attack, Gibbons wedded a novel popularity to its nationalism.

One of the ablest judges who ever sat on an American court, james kent of New York, whose opinion Marshall repudiated, grumbled in the pages of his Commentaries on American Law (1826) that Marshall's "language was too general and comprehensive for the case." Kent was right. The Court held the state act unconstitutional for conflicting with an act of Congress, making Marshall's enduring treatise on the commerce clause unnecessary for the disposition of the case. The conflict between the two statutes, Marshall said, "decides the cause." Kent was also right in stating that "it never occurred to anyone," least of all to the Congress that had passed the Coastal Licensing Act of 1793, which Marshall used to decide the case, that the act could justify national supremacy over state regulations respecting "internal waters or commerce." The act of 1793 had been intended to discriminate against foreign vessels in the American coastal trade by offering preferential tonnage duties to vessels of American registry. Marshall's construction of the statute conformed to his usual tactic of finding narrow grounds for decision after making a grand exposition. He announced "propositions which may have been thought axioms." He "assume[d] nothing," he said, because of the magnitude of the question, the distinction of the judge (Kent) whose opinion he scrapped, and the able arguments, which he rejected, by Thomas Emmett and Thomas Oakely, covering over 125 pages in the report of the case.

Except for the arguments of counsel, the Court had little for guidance. It had never before decided a commerce clause case, and the clause itself is general: "Congress shall have power to regulate commerce with foreign nations and among the several states.…" The power to regulate what would later be called "interstate commerce" appears in the same clause touching foreign commerce, the regulation of which is necessarily exclusive, beyond state control. But the clause does not negate state regulatory authority over interstate commerce, and the framers of the Constitution had rejected proposals for a sole or exclusive power in Congress. Interstate commerce could be, as counsel for the monopoly contended, a subject of concurrent power. Marshall had previously acknowledged that although the Constitution vested in Congress bankruptcy and tax powers, the states retained similar powers. the federalist #32 recognized the principle of concurrent powers but offered no assistance on the commerce clause. Congress had scarcely used the commerce power except for the embargo acts, which had not come before the Supreme Court. Those acts had interpreted the power to "regulate" as a power to prohibit, but they concerned commerce with foreign nations and were an instrument of foreign policy.

Prior to Gibbons the prevailing view on the interstate commerce power was narrow and crossed party lines. Kent, a Federalist, differed little from the Jeffersonians. james madison, for example, when vetoing a congressional appropriation for internal improvements, had declared in 1817 that "the power to regulate commerce among the several states cannot include a power to construct roads and canals, and to improve the navigation of water courses." In 1821, when james monroe had vetoed the cumberland road bill, whose objective was to extend national authority to turnpikes within the states, he had virtually reduced the commerce power to the enactment of duties and imports, adding that goods and vessels are the only subjects of commerce that Congress can regulate. "Commerce," in common usage at the time of Gibbons, meant trade in the buying and selling of commodities, not navigation or the transportation of passengers for hire. That was the business of Mr. Gibbons, who operated a steamship in defiance of the monopoly, between Elizabethtown, New Jersey, and New York City, in direct competition with Ogden, a licensee of the monopoly. Had Gibbons operated under sail, he would not have violated New York law; as it was, the state condemned his vessel to fines and forfeiture.

In Gibbons, then, the Court confronted a stunted concept of commerce, a strict construction of the commerce power, and an opinion bearing Kent's authority that New York had regulated only "internal" commerce. Kent had also held that the commerce power was a concurrent one and that the test for the constitutionality of a state act should be practical: could the state and national laws co-exist without conflicting in their operation? Marshall "assumed nothing" and in his step-by-step "axioms" repudiated any argument based on such premises.

He began with a definition of "commerce." It comprehended navigation as well as buying and selling, because "it is intercourse." This sweeping definition prompted a disgruntled states-rightist to remark, "I shall soon expect to learn that our fornication laws are unconstitutional." That same definition later constitutionally supported an undreamed of expansion of congressional power over the life of the nation's economy. Having defined commerce as every species of commercial intercourse, Marshall, still all-embracing, defined "commerce among the several states" to mean commerce intermingled with or concerning two or more states. Such commerce "cannot stop at the external boundary line of each State, but may be introduced into the interior"—and wherever it went, the power of the United States followed. Marshall did not dispute Kent's view that the "completely internal commerce" of a state (what we call intrastate commerce) is reserved for state governance. But that governance extended only to such commerce as was completely within one state, did not "affect" other states, "and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the [United States] government." Marshall's breath-taking exposition of the national commerce power foreshadowed the stream of commerce doctrine and the shreveport doctrine of the next century. "If Congress has the power to regulate it," he added, "that power must be exercised whenever the subject exists. If it exists within the States … then the power of Congress may be exercised within a State."

Having so defined the reach of the commerce power, Marshall, parsing the clause, defined the power to "regulate" as the power "to prescribe the rule by which commerce is to be governed." It is a power that "may be exercised to its utmost extent, and acknowledges no limitations.…" In cohens v. virginia (1821) he had said that the United States form, for most purposes, one nation: "In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people," and the government managing that people's interests was the government of the Union. In Gibbons he added that because the "sovereignty of Congress" is plenary as to its objects, "the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government.…" Were that true, the commerce power would be as exclusive as the treaty power or war powers and could not be shared concurrently with the states.

Marshall expressly denied that the states possessed a concurrent commerce power; yet he did not expressly declare that Congress possessed an exclusive commerce power, which would prevent the states from exercising a commerce power even in the absence of congressional legislation. That was daniel webster ' s argument in Gibbons, against the monopoly, and Marshall found "great force" in it. Notwithstanding the ambiguity in Marshall's opinion, he implicitly adopted Webster's argument by repeatedly rejecting the theory of concurrent commerce powers. He conceded, however, that the states can reach and regulate some of the same subjects of commerce as Congress, but only by the exercise of powers distinct from an interstate commerce power. Referring to the mass of state regulatory legislation that encompassed inspection laws, health laws, turnpike laws, ferry laws, "etc.," Marshall labeled them the state's "system of police," later called the police power. But his jurisprudence-by-label did not distinguish interstate from intrastate commerce powers. Having declared that Congress might regulate a state's "internal" commerce to effectuate a national policy, he allowed the state police power to operate on subjects of interstate commerce, in subordination, of course, to the principle of national supremacy. (See willson v. blackbird creek marsh co.)

Following his treatise on the commerce clause, Marshall turned to the dispositive question whether the New York monopoly act conflicted with an act of Congress. The pertinent act of 1793 referred to American vessels employed in the "coasting trade." It made no exception for steamships or for vessels that merely transported passengers. The New York act was therefore "in direct collision" with the act of Congress by prohibiting Gibbons's steamship from carrying passengers in and out of the state's ports without a license from the monopoly.

Justice william johnson, although an appointee of thomas jefferson, was even more nationalistic than Marshall. Webster later boasted that Marshall had taken to his argument as a baby to its mother's milk, but the remark better suited Johnson. Concurring separately, he declared that the commerce clause vested a power in Congress that "must be exclusive." He would have voided the state monopoly act even in the absence of the Federal Coastal Licensing Act: "I cannot overcome the conviction, that if the licensing act was repealed tomorrow, the rights of the appellant to a reversal of the decision complained of, would be as strong as it is under this license." Johnson distinguished the police power laws that operated on subjects of interstate commerce; their "different purposes," he claimed, made all the difference. In fact, the purpose underlying the monopoly act was the legitimate state purpose of encouraging new inventions.

In a case of first impression, neither Marshall nor Johnson could lay down doctrines that settled all conflicts between state and national powers relating to commerce. Not until 1851 did the Court, after much groping, seize upon the doctrine of selective exclusiveness, which seemed at the time like a litmus paper test. (See cooley v. board of port wardens of philadelphia.) Yet Gibbons anticipated doctrines concerning the breadth of congressional power that emerged in the next century and still govern. Marshall was as prescient as human ability allows. The Court today cannot construe the commerce clause except in certain state regulation cases without being influenced by Marshall's treatise on it. "At the beginning," Justice robert jackson declared in wickard v. filburn (1941), "Chief Justice Marshall described the federal commerce power with a breadth never exceeded."

Leonard W. Levy
(1986)