Fifth Topic: Gibbons v. Ogden and the Commerce Clause


In the past two classes we have seen two of the foundation stones of national government supremacy established by the Marshall Court. In McCulloch v. Maryland, the Court’s broad reading of the Necessary and Proper Clause provided Congress with the doctrine of implied powers that strengthened it significantly and that fundamentally weakened the principle of enumerated or express powers. Eventually, the doctrine of implied powers was applied to the judicial and executive branches as well.


In the cases of Dartmouth College v. Woodward and Fletcher v. Peck, the Court interpreted the Contracts Clause in Section 10 of Article I to prevent states from impairing not only private contracts, but also contract-like rights and obligations that were established by various kinds of state laws. This particular means of restricting state powers was broadly used by the Court until the early twentieth century, when it began to apply the Fourteenth Amendment’s Due Process and Equal Protection clauses rather than the Contracts Clause to achieve similar effect.


We now look at the constitutional language that has probably provided Congress with its most significant positive power for the national government and has provided the Court with its most significant regulatory power over the states—the Commerce Clause.


The language of the clause is deceptively simple. As the third clause in the list of enumerated powers in Article I, Section 8, it gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” (We might note here that the Necessary and Proper Clause then gives Congress broad powers to choose the methods and means to enforce this power. The government argument in National Federation of Independent Business case is a clear example of this tandem .)


The clause was first construed by the Supreme Court in the steamboat case, Gibbons v. Ogden, the background for which is well told in the Garraty text. The opinion, like Marshall’s opinions in Marbury, McCulloch, and Dartmouth College, is organized into a series of questions or inquiries. Thus, what is the meaning of “regulate”? of “commerce”? of “among the several states”? How does Marshall’s definition of each of these terms enhance national power? How do the definitions ultimately restrict state power?


You should be aware of another issue that Marshall wrestled with in the opinion, the issue of “exclusivity.” Nationalists argued that national government alone possessed the power to regulate commerce under the clause. In other words, regulation of commerce was exclusively a power of the federal government and any state exercise of the power was invalid. Republicans argued that the power was not exclusively federal. The states may appropriately regulate aspects of commerce as well. On page 209 of the Gibbons opinion, Marshall recounts Daniel Webster’s nationalist argument for Appellant Gibbons. What is Marshall’s response to it? Is the commerce power exclusively federal or not?


Finally, the origins of another constitutional doctrine—the Dormant or Negative Commerce Clause—can also be found in the opinion. See if you can find a reference to this idea in Marshall’s opinion.


Please read (1) the short excerpt by Professor McLaughlin on the Commerce Clause cases, then (2) the story by John Garraty on “The Steamboat Case,” and finally (3) the excerpts from Chief Justice Marshall’s opinion in Gibbons v. Ogden.