Why Gibbons v. Ogden was a Flawed Decision

Marshall continued his assault on the constitution in his 1824 decision Gibbons v. Ogden. The case involved a New York statute which provided a monopoly to the steamship business on New York waterways. The commerce clause states: “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Marshall ruled that commerce was much more than “traffic” but was also “intercourse”. Marshall further defined commerce as including the navigation of ships in waterways and overruled the New York statute. Marshall based his decision on the wording in Article 1, Section 9 which states: “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another.” The next sentence also states: “nor shall vessels bound to or from on State, be obliged to enter, clear, or pay duties, in another.” From this Marshall interpreted the commerce clause to mean not only controlling navigation among states, but it “may be introduced into the interior” of states. Marshall states that the commerce clause would be “useless power” if the federal government could not “pass those lines” within the states if necessary. Marshall would further state Congress’s power to regulate commerce has “no limitations, other than are prescribed in the constitution.” In other words, Marshall can find plenty of latitude to increase Congressional power not prescribed in the constitution (such as this case or McCulloch), but he says Congressional commerce power is only limited by what is prescribed in the constitution. Marshall, later in his opinion, uses the Supremacy clause to answer the question of sovereignty when both states and the federal government have incidental laws regulating commerce that conflict. New York argued since the constitution forbids States from “laying duties on imports and exports proves this power might have been exercised, had it not been expressly forbidden.” Marshall ended this argument by saying “duties on imports and exports” pertained to taxing powers not commerce powers. Well then, by Marshall’s argument the statements: “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another”; and “nor shall vessels bound to or from on State, be obliged to enter, clear, or pay duties, in another” is about taxing power or discrimination, but it is not about navigation.

By all accounts of the time and dictionaries the definition of commerce means trade. In no instance during the Constitutional Convention (the word commerce appears 34 times in Madison’s notes), in the Federalist papers (63 appearances), or the ratification conventions (Massachusetts – 19 appearances, New York – 8 appearance, Pennsylvania – 8 appearances, North Carolina – 18 appearances, South Carolina – 26 appearances, or Virginia – 74 appearances) is commerce defined as anything more than trade. In no instance is commerce defined as intercourse, manufacturing, agriculture, economic activity, or navigation supremacy. Although Gibbons v. Ogden was a unanimous decision, Justice Johnson wrote a separate decision stating a more conventional definition of commerce (trade). This quote sums up the outcome of the Gibbons v. Ogden decision: “The Marshall Court's broad reading of the Commerce Clause gave it a legal elasticity that was later extended to include federal regulation of railways, airlines, pipelines, television stations, telephone communication, and even racial segregation.” Despite this decision, most federal government expansion in the early part of American history was created through the “necessary and proper” clause and not the commerce clause. This is for two reasons: 1. Marshall’s decision in McCulloch v. Maryland gave the necessary and proper clause even broader appeal than the commerce clause and 2. Most Americans understood the real definition of commerce and believed its scope was very narrow as written in the Constitution despite Marshall’s opinion. It would take until the FDR era for the commerce clause to grow in scope to include regulating anything that is economic.

In Barron v. City of Baltimore in 1833, Marshall may have made his most inexcusable decision. Marshall ruled that the Bill of Rights (the first 10 Amendments) only applied to the federal government, but not to the states. This was of course contrary to what James Madison had in mind when Congress adopted the amendments in 1791. Marshall’s decision led to a nearly 150 year battle between the Supreme Court, States, and the Bill of Rights.