54 PART ONE • THE AMERICAN SYSTEM
Commerce Clause
The section of the
Constitution in which
Congress is given the
power to regulate trade
among the states and with
foreign countries.a strong central government. We look here at two cases decided by the Marshall Court:
McCulloch v. Maryland^5 and Gibbons v. Ogden.^6 Both cases are considered milestones in
the movement toward national government supremacy.McCulloch v. Maryland (1819)
The U.S. Constitution says nothing about establishing a national bank. Nonetheless, at differ
ent times Congress chartered two banks—the First and Second Banks of the United States—
and provided part of their initial capital. Thus, they were national banks. The government of
Maryland imposed a tax on the Second Bank’s Baltimore branch in an attempt to put that
branch out of business. The branch’s cashier, James William McCulloch, refused to pay the
Maryland tax. When Maryland took McCulloch to its state court, the state of Maryland
won. The national government appealed the case to the Supreme Court.
One of the issues before the Court was whether the national government
had the implied power, under the necessary and proper clause, to charter a bank
and contribute capital to it. The other important question before the Court was
the following: If the bank was constitutional, could a state tax it? In other words,
was a state action that conflicted with a national government action invalid under
the supremacy clause?
Chief Justice Marshall held that if establishing a national bank aided the national
government in the exercise of its designated powers, then the authority to set up such
a bank could be implied. Having established this doctrine of implied powers, Marshall
then answered the other question before the Court and established the doctrine of
national supremacy. Marshall ruled that no state could use its taxing power to tax a
part of the national government. If it could, “the declaration that the Constitution...
shall be the supreme law of the land, is [an] empty and unmeaning [statement].”
Marshall’s decision enabled the national government to grow and to meet problems
that the Constitution’s framers were unable to foresee. Today, practically every expressed
power of the national government has been expanded in one way or another by use of
the necessary and proper clause.Gibbons v. Ogden (1824)
One of the most important parts of the Constitution, included in Article I, Section 8, is the
commerce clause, in which Congress is given the power “[t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.” The meaning
of this clause was at issue in Gibbons v. Ogden.The Background of the Case. Robert Fulton and Robert Livingston secured a monopoly
on steam navigation on the waters in New York State from the New York legislature in- They licensed Aaron Ogden to operate steampowered ferryboats between New
York and New Jersey. Thomas Gibbons, who had obtained a license from the U.S. govern
ment to operate boats in interstate waters, decided to compete with Ogden, but he did so
without New York’s permission. Ogden sued Gibbons. New York’s state courts prohibited
Gibbons from operating in New York waters. Gibbons appealed to the Supreme Court.
There were actually several issues before the Court in this case. The first issue was
how the term commerce should be defined. New York’s highest court had defined the
term narrowly to mean only the shipment of goods, or the interchange of commodities,
5. 17 U.S. 316 (1819).
6. 22 U.S. 1 (1824).
John Marshall
(1755–1835) was the fourth
chief justice of the Supreme
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