SCOTUS 101
JUNE 2019 23
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courts to shut down Gibbons and Bellona. Both the Court of Chancery
and the appeals court, then called the Court of Errors, agreed with Ogden
that his sublicense gave him exclusive rights to call at New York ports,
and that Gibbons had to stop sailing to those ports from New Jersey.
That precipitated a U.S. Supreme Court confrontation anyone who fol-
lowed politics saw reaching well beyond shipping. With the American
frontier pushing west and commerce between settlements there and the
East becoming a national priority, an infrastructural frenzy had begun.
Developers were digging canals. The federal government was paying to
construct a 150-mile National Road between Cumberland, Maryland,
and Wheeling, West Virginia. The ruling in the argument between Gib-
bons and Ogden would define the future not only of steamboat routes
but interstate roads, canals, and technologies still gestating. As early as
1808 Jonathan Grout unsuccessfully asked Congress to give him a con-
tract to establish a telegraph system; in 1815, Livingston’s brother-in-law,
John Stevens, had gotten a license from New Jersey
to run a railroad there, though it was 10 years
before he had a line operating.
Technology aside, Gibbons v. Ogden was inte-
gral to the struggle, dating to the republic’s infancy,
to define the extent to which states, in ratifying
the Constitution, had yielded autonomy they had
had under the Articles of Confederation. That
debate’s nature was evident in the petitioners’
legal teams. Ogden had hired former New York
State Attorneys General Thomas Emmet
and Thomas Oakley. Gibbons was repre-
sented by Daniel Webster, chairman of the
House Judiciary Committee, and sitting
U.S. Attorney General William Wirt.
Article 1, Section 8 of the Constitution
authorizes Congress “to regulate Commerce
with foreign Nations, and among the sev-
eral States, and with Indian Tribes.” But
until the high court took on the Gibbons/
Ogden dispute, the justices never had been
asked to define that authority.
In three days of oral argument, Ogden’s
lawyers insisted that, as the New York courts
had found, “commerce” meant little more
than “trade,” and that the Constitution
merely empowered Congress to set some
rules about sale of goods by parties in one
state to parties in another, with the proviso
that the states had concurrent power with Washington. Webster and
Wirt insisted the commerce clause meant much more, applying, by their
lights, to all business contacts between parties in different states and,
moreover, that only the federal government had the power to regulate
such contacts.
The Webster-Wirt argument on behalf of Gibbons carried the day
with flying colors. “Commerce, undoubtedly, is traffic, but it is some-
thing more: it is intercourse,” Chief Justice John Marshall wrote. “It
describes the commercial intercourse between nations, and parts of
nations, in all its branches, and is regulated by prescribing rules for
carrying on that intercourse.” No single state
could regulate a steamship plying between
two states. Four of the five other Justices
signed on to Marshall’s opinion. William John-
son did not, but he did agree with colleagues
that New York could not stop Gibbons from
running his steamboat from New Jersey to
New York.
Marshall’s opinion went far further than
handing Gibbons a win. Five years before, in
McCulloch v. Maryland, Marshall had estab-
lished that the federal government was meant
to be very powerful (“Banking on Centraliza-
tion,” August 2018), ruling that it had powers
beyond those outlined in the Constitution if it
needed those other powers to do its
job. Now Marshall gave Washington
something like a blank check to regu-
late broadly in the name of controlling
interstate commerce. Congress could
regulate not only commerce between
states, he wrote, but also activities
within a state “connected with” inter-
state commerce. Moreover, the chief
justice decreed, that power “may be
exercised to its utmost extent, and
acknowledges no limitations, other
than are prescribed in the Constitution.”
Congress listened. Gibbons v. Ogden paved
the way for federal regulation of navigation
and transportation and, in 1890, for the Sher-
man Act, written to bust trusts that dominat-
ing American industries ranging from oil to
whiskey. In 1905 the justices upheld a federal
attack on price fixing among Chicago meat-
packers, reasoning that though the activity
was all local, participants were links in an
interstate chain connecting cattle farmers to
the dinner table. The principle of federal
power over interstate commerce eventually
allowed Congress to ban child labor, to set
minimum wages and other working condi-
tions, and, in the Civil Rights Act of 1964, to
outlaw race-based bias against customers
even by small local businesses, on the ratio-
nale that they sold goods made out of state.
Gibbons v. Ogden resonated nearly every-
where except in the litigants’ lives. By the time
the court took the case in 1824, trencherman
Gibbons was bedridden with the diabetes and
obesity that killed him in 1826, and by 1829
business reversals had driven Ogden into
debtor’s prison, languishing until the New Jer-
sey legislature passed a law freeing him. +
Men at Odds
Ogden, top, initiated
what became an epic
legal confrontation
when he started going
after Gibbons’s trade.