American History – June 2019

(John Hannent) #1

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.

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