This Day in Legal History (Marshall Points Commerce-Clause Dagger at States’ Rights)

March 2, 1824—In the last year of what might be termed Jeffersonian Republicanism, John Marshall, Chief Justice of the Supreme Court, continued to strike at the Democratic-Republican Party he had shadow-boxed in more than two decades on the high court.  In Gibbons v. Ogden, he did more than merely decide between two competing steamboat owners, or even establish a precedent that would govern use of the interstate-commerce clause of the Constitution  in everything from the navigation innovations of the 19^th century to the telecommunications revolution of the 21^st.  

No, Marshall—himself a Virginia slaveowner—insisted that, whenever the two conflicted, federal power superseded state power. That nationalist vision repudiated the notions of states’ rights and secession secretly promoted by Thomas Jefferson and James Madison in the Virginia and Kentucky Resolutions of 1798. The enhanced authority this throwback to the now-defunct Federalist Party presented to Congress to pass laws relating to interstate commerce would, in time, become a weapon for abolitionists for the antebellum era, and even for civil-rights activists in the 1950s and 1960s.

A second cousin to Jefferson, Marshall, still vigorous in his late sixties, had outlasted Jefferson, Madison, and now his childhood friend, James Monroe. More infuriating to the Sage of Monticello, Marshall had pulled within his gravitational orbit most of the men that the Democratic-Republican Party had nominated to the high court, in the vain hope of counteracting his influence.

After justices had heard oral arguments, they reviewed the day’s business quickly in their cramped boardinghouse, where the chief’s mastery of men matched any mere President. For a man considered the bulwark of conservatism in the young republic, he put on no airs. (On a visit to the John Marshall House in Richmond some years ago, I was astonished to find that not only did he do his own food shopping in the city streets, but also that he was such a careless dresser that he needed the help of one of his slaves to ensure he looked presentable on special occasions.)

The court’s decision in Gibbons v. Ogden promised to be among them. Daniel Webster, the lead counsel for the case’s appellant, Thomas Gibbons, had drawn a crowd to see if he could deliver another persuasive argument, as he had done in two other landmark Marshall Court decisions (Dartmouth College v. Woodward and McCulloch v. Maryland), and the future Senator from Massachusetts didn’t disappoint. Moreover, commercial interests in New York were keenly watching a young go-getter in the background of the case, Cornelius Vanderbilt, whose tough, even ruthless management of Gibbons' boat had elicited the rancor of the latter's former steamboat partner, Aaron Ogden.  

The case had developed originally because the New York State Assembly had awarded a steamboat monopoly on the Hudson River to politician Robert Livingstone and inventor Robert Fulton. In turn, Livingstone allowed Ogden to navigate the waters between New York and New Jersey with this new mode of transportation. When Ogden fell out with Gibbons, the latter obtained a license to navigate under the federal Coasting Act of 1793. The New York state courts consistently sided with Ogden, until Gibbons played his last trump card and appealed to the Supreme Court.

In siding with Gibbons, Marshall struck down a monopoly that was restraining the growth of a new industry. The decision allowed a host of entrepreneurs who were trying to follow up on Fulton’s steamboat to ply their trade throughout the country. In particular, it “opened the floodgates for the Hudson River,” according to Fulton biographer Kirkpatrick Sale. Together with the Erie Canal (opening a year after the Ogden decision), the steamboat would transform the American interior, uniting East and West through strengthened commercial ties.

But Marshall was engaging in something larger: an adroit, step-by-step process by which he erected a legal foundation for his vision of a mercantile, contract-bound society that would unite all sections of a disparate republic into a true nation. Webster crowed that Marshall imbibed his arguments “as a baby takes in his mother’s milk,” but, in truth, the Chief Justice merely did with the attorney what he had done so successfully with his associate justices: gleefully employed their reasoning as a means of advancing his own constitutional strategy.

Crucially, in interpreting Article 1, Section 8, Clause 3 of the U.S. Constitution—i.e., the power given to Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”—Marshall construed the verbiage broadly to mean not simply the artifacts of commerce, but the whole “intercourse” by which it was conducted. Then, turning to the phrase “among the several states,” he argued for its widest possible application, limited only by the Constitution itself: “Commerce among the states, cannot stop at the external boundary line of each state, but may be introduced into the interior.”

Predictably, Jefferson and his followers did not look benignly on what they saw as yet another incursion by the Chief Justice on states’ rights. But Gibbons v. Ogden proved to be among the Marshall Court’s most popular decisions. Its wide acceptance, in fact, enabled opponents of slavery to wonder if it couldn’t be applied in overthrowing a system they abominated.

The domestic slave trade relied on the “chattel principle,” the notion that slaves were movable property. While most Americans thought that slavery could not be interfered with within individual states, abolitionists saw an increasing point of vulnerability to the peculiar institution in slave trade between states, which would fall under the commerce power.

Abolitionists’ denunciation of the interstate slave traffic, historian David L. Lightner argues in Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War, threatened alike plantation owners in older states (who needed proceeds from sales of surplus slaves to supplement their increasingly narrow profit margins) and those in the Deep South (who needed the labor to farm newly opened territories). Slaveowners’ paranoia about this perceived threat to their livelihood boosted the secessionist movement and hastened the coming of the Civil War.

A century after the Civil War, the administration of Lyndon Johnson crafted the Civil Rights Act of 1964 in such a way that the commerce power could be used to outlaw segregation and prohibit discrimination against African-Americans. It provided the federal government a wedge to charge non-state actors with Equal Protection violations. It also became a tool by which Congress could regulate manufacturing, child labor, workplace safety, farm production, mass media of communication, wages and hours of work, the activities of labor unions, buying and selling at marketplaces, and various other activities.

All of this began with a Chief Justice who served under five Presidents, making what was widely expected to be the weakest branch of the federal government into one with its own unrivaled authority. Marshall did so through a self-confidence that allowed him to range widely over the law while gratefully accepting the expertise of particular justices; the sure-footed instinct to know how far to push a point without incurring the full wrath of Jefferson and his followers (a point I mentioned in a prior post about how he conducted the Aaron Burr treason trial); and a conviviality that furthered the good feelings among the associate justices with liberal amounts of alcohol. 

The justices had a rule about drinking only when it was raining, but, as might be guessed, Marshall used a broad interpretation of their jurisdiction to decide when that applied. He would sometimes ask Associate Justice Joseph Story to “step to the window and see if it does not look like rain.”  If Story said the sun was “shining brightly,” Marshall would often answer, “our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”  That was the signal for the bottles to open, and in the ensuing time spent together, the Chief undoubtedly sounded extra persuasive...