Gibbons v. Ogden 9 Wheaton 1 (1824)

Author:Leonard W. Levy

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Chief Justice JOHN MARSHALL'S great disquisition on the COMMERCE CLAUSE in this case is the most influential in our history. Gibbons liberated the steamship business and much of American INTERSTATE COMMERCE from the grip of state-created monopolies. More important, Marshall laid the doctrinal basis for the national regulation of the economy that occurred generations later, though at the time his opinion buttressed laissez-faire. He composed that opinion as if statecraft in the interpretation of a constitutional clause could decide whether the United States remained just a federal union or became a nation. The New York act, which the Court voided in Gibbons, had closed

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the ports of the state to steamships not owned or licensed by a monopoly chartered by the state. Other states retaliated in kind. The attorney general of the United States told the Gibbons Court that the country faced a commercial "civil war."

The decision produced immediate and dramatic results. Within two weeks, a newspaper jubilantly reported: "Yesterday the Steamboat United States, Capt. Bunker, from New Haven, entered New York in triumph, with streamers flying, and a large company of passengers exulting in the decision of the United States Supreme Court against the New York monopoly. She fired a salute which was loudly returned by huzzas from the wharves." Senator MARTIN VAN BUREN (Democrat, New York), who had recently advocated curbing the Court, declared that even those states whose laws had been nullified, including his own, "have submitted to their fate," and the Court now justly attracted "idolatry," its Chief respected as "the ablest Judge now sitting upon any judicial bench in the world." For a Court that had been under vitriolic congressional and state attack, Gibbons wedded a novel popularity to its nationalism.

One of the ablest judges who ever sat on an American court, JAMES KENT of New York, whose opinion Marshall repudiated, grumbled in the pages of his Commentaries on American Law (1826) that Marshall's "language was too general and comprehensive for the case." Kent was right. The Court held the state act unconstitutional for conflicting with an act of Congress, making Marshall's enduring treatise on the commerce clause unnecessary for the disposition of the case. The conflict between the two statutes, Marshall said, "decides the cause." Kent was also right in stating that "it never occurred to anyone," least of all to the Congress that had passed the Coastal Licensing Act of 1793, which Marshall used to decide the case, that the act could justify national supremacy over state regulations respecting "internal waters or commerce." The act of 1793 had been intended to discriminate against foreign vessels in the American coastal trade by offering preferential tonnage duties to vessels of American registry. Marshall's construction of the statute conformed to his usual tactic of finding narrow grounds for decision after making a grand exposition. He announced "propositions which may have been thought axioms." He "assume[d] nothing," he said, because of the magnitude of the question, the distinction of the judge (Kent) whose opinion he scrapped, and the able arguments, which he rejected, by Thomas Emmett and Thomas Oakely, covering over...

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