Reading Assignments for Fifth Topic: Gibbons v. Ogden and the Commerce Clause

First assignment:

1. George Dangerfield, “The Steamboat Case,” chapter 4 in John Garraty, Quarrels that have Shaped the Constitution.

2. Gibbons v. Ogden, 22 U.S. 1, 186-205, 209-211, 6 L.Ed. 23 (1824). Excerpt.

3. From Andrew C. McLaughlin’s Constitutional History of the United States, paragraphs 28 to the end of chapter 30:



. . . Two other cases deserve more than passing mention. The first leading decision on the subject of interstate commerce — Gibbons v. Ogden — disclosed Marshall's wisdom in his determination not to fasten limitations on national authority by the application of minute definitions. In 1824 there came before the Court the question of the validity of a New York act granting to certain persons the exclusive right to navigate New York waters in steamboats.[36] The immediate issue of concern was whether or not a state had in its power the right to lay down exclusive regulations concerning instruments of transportation; but the main issue was in fact greater. Could a single state, asserting its complete authority over transportation on waters within its limits, obstruct the natural routes of communication between that state and every other and even shut its harbors to foreign vessels? If so, the United States might theoretically continue to exist as a political whole; but the development of industrial integrity would be almost impossible.

State sovereignty or any extreme doctrine of states' rights, carried to the point of preserving economic isolation for each and every state, could have but one result — the disintegration of the union.[37] Almost at the beginning of his opinion in the case Marshall swept aside all narrow definitions of commerce: "Commerce, undoubtedly, is traffic, but it is something more; it is intercourse." [38] While the completely internal commerce of a state is subject to state regulation, interstate and foreign commerce is within the control of Congress. The power to regulate it does not stop with the boundaries of states. This power "is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States."

No subject in constitutional law has presented more difficulties than the regulation of interstate commerce; and a difficult problem has been that of determining how far a state can go in commercial regulation in the absence of congressional enactment. Many decisions have been rendered since Marshall's time, and it would be too much to say that Gibbons v. Ogden in 1824 by any means fully announced the law as it was to be. What it did do was to give the commerce clause a broad construction, which assured general and national control when later conditions made such control and regulation desirable.

Three years after the decision in the steamboat case, Marshall delivered another important decision [Brown v. Maryland] on the law of foreign commerce, again marking out a restriction on state authority.[39] He denied the right of a state to require importers of foreign goods to pay a license fee. This is the "original package" case, and its interpretation and application in later years raised perplexing questions. The critical question was at what time do the articles imported become subject to the taxing power of the state? "It is sufficient", said the Court, "for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package ... , a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution." [40] This principle was at a much later time declared to be applicable to interstate commerce as well as foreign.[41]

The general nature and effect of Marshall's constitutional decisions are apparent. They asserted and defended, by broad principles of construction, the competence of the national government within the field of sovereignty assigned to it. They laid down decisively the fact of limitations on the states. They conclusively upheld the power of the Supreme Court to review state decisions, and in this way protected the Constitution from infringement. That Marshall was intent upon defending the interests of property from rude interference by state legislatures is less easily demonstrated, but that he was determined to support what he deemed to be constitutional restrictions is plain. His main doctrines were doubtless those of the Federalists, which had been so eloquently presented by Hamilton, but that his chief decisions ran counter to the hopes and purposes of the framers of the Constitution, who sought to build a lasting and effective national government, cannot be successfully maintained.


[36] Gibbons v. Ogden, 9 Wheaton I.

[37] "The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government...." Ibid., 190. See the Constitution, Art. 1, sec. 8, par. 3; sec. 9, par. 6; sec. 10, par. 2.

[38] The powers involved in the right to regulate commerce, said the Supreme Court at a later day, "keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth." Pensacola v. Western Union Telegraph Co., 96 U. S. 1, 9 (1878). In this case the Court declared that Congress could regulate the telegraph as a means of interstate communication. In a comparatively recent case it was decided that correspondence schools were engaged in interstate commerce. International Textbook Co. v. Pigg, 217 U. S. 91 (1910). A similar decision was made concerning electric current. See Public Utilities Commission v. Attleboro Steam and Electric Co., 273 U. S. 83 (1927).

[39] Brown v. Maryland, 12 Wheaton 419 (1827).

[40] Ibid., 441-442.

[41] Leisy v. Hardin, 135 U. S. 100 (1890).


Second assignment:

4. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Excerpt. Farmer Filburn grew too much wheat.

5. U.S. v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Excerpt. The federal Gun-Free School Zones Act of 1990.

6. National Federation of Independent Business v. Sibelius, 567 U.S. ---, 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012). Excerpt. The Affordable Care Act (Obamacare).


Discussion Questions:

1. On the basis of Justice Marshall’s interpretation in Gibbons v. Ogden of the phrase “among the several states” in the Commerce Clause, what is the line between intrastate activity (activities that take place entirely within one state) and interstate activities (activities that affect or involve more than one state)? Do you think that line had to be redrawn as the United States developed from a rule, agricultural economy to a national and even international industrial economy? What, if anything, should be beyond federal Commerce Clause power today?

2. In light of the Wickard (and Gonzales v. Raich) case, does Congress have the constitutional authority to prohibit you from growing tomatoes in your garden? What would be the argument in support of such federal regulation? What against?

3. In the wake of the Lopez case, a number of cases challenged the federal Drug-Free School Zone act, which made possession of controlled substances within 100 feet of a school a federal criminal offense? How should the Court have decided those cases? Is the power to regulate drugs essentially different from the power to regulate guns? Should it be?

4. In the wake of the National Federation of Independent Business case, does Congress have the authority to require you to grow tomatoes or marijuana in your back yard? Why or why not?


Related Cases


The Daniel Ball, 77 U.S. 557, 558-559 (facts of the case), 562-566 (Justice Field's opinion of the Court), 19 L.Ed. 999 (1871). Federal regulation of intrastate steamer.

National Labor Relations Board v. Jones and Laughlin Steel, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937). The general rule for determining the extent of the federal power under the Commerce Clause.

Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). (Findlaw) The California Medical Marijuana case. Note Justice Thomas’s dissent.

United States v. Morrison et al, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). (Findlaw) The Virginia Tech assault case. Another case limiting federal commerce power.

© William S Miller