Without Precedent

by Joel Richard Paul

  Perhaps Marshall was concerned not by the domestic impact of the court’s decision but by its implications for foreign affairs. A decision that a U.S. cruiser could stop and search foreign vessels in peacetime would likely invite more naval conflicts with the European powers in the future. If the United States could assert its authority in international waters over foreign vessels, what would prevent France or Britain from doing the same against U.S. ships?

  Whatever Marshall’s reason for denying the Africans their freedom, he clearly felt conflicted. His opinion began with these words: “[T]his Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.”61 The contrast he drew between his feelings and his duty reveals something about Marshall’s psychology. His early years were shaped by powerful male authority figures—his father, General Steuben, President Washington, and President Adams. Marshall had advanced professionally through his service to these authority figures. As the eldest in his large family, Marshall accepted responsibility at an early age to help to raise his siblings. His parents expected him to subordinate his own desires for the collective good of the family. Marshall distinguished himself as a young soldier for his self-discipline and willingness to endure hardship. As chief justice, Marshall often built consensus by compromising his own views. Throughout Marshall’s career, duty demanded that he set aside his own emotions; service and conscience were antipodes. Personal values had to yield to higher authority. His instinct as a judge would be to choose the opposite of his own preference, to privilege rules over empathy.

  Antelope revealed certain faults in Marshall’s character: a readiness to submit to the authority of the law no matter how cruel or capricious it was and a failure of empathy for those seeking justice in his court. Antelope presented Marshall with the opportunity to strike a blow against the slave trade that might have sent ripples across the Atlantic. He failed this test. Though Marshall would not challenge slavery directly, he found another, indirect route—granting Congress authority to regulate the slave trade domestically. A steamboat provided the unlikely vehicle for Marshall’s redemption.

  CHAPTER TWENTY-EIGHT

  THE GREAT STEAMBOAT CASE

  In 1820, Chief Justice Marshall issued one of the most monumental decisions ever rendered on the scope of the federal government’s powers and its relationship to the states. It was a decision that more than any other made it possible to forge a unified modern national economy out of the fragmented state governments that jealously feuded over resources and markets.

  The Constitution granted Congress the “power to regulate commerce among the states,” but what did that include? And what powers belonged exclusively to the states? The Constitution also eliminated trade barriers between states, yet state governments had issued monopolies to local businesses and jealously sought to protect local businesses from competition. A growing economy required a national infrastructure, and it was not clear whether the federal government had the power to create that infrastructure.

  At the turn of the nineteenth century, the emergence of the steam engine held the promise of opening up the interior of the country and uniting the states in a genuine national market. James Rumsey and John Fitch had developed designs for a steamboat, which Fitch demonstrated to the amazement of the delegates to the Constitutional Convention in Philadelphia in 1787. Their demonstration helped to persuade the delegates of the value of granting the federal government the power to award patents. Despite their creativity, Fitch and Rumsey lacked the financial and political capital to create a successful business.1

  In 1802, Robert Fulton, an ambitious engineer, and Robert Livingston, the former chancellor of New York State’s highest court, formed a partnership to develop steamboats. Five years later, they were granted a U.S. patent—which most likely infringed on Fitch’s design and may have been invalid. In 1808, Chancellor Livingston’s political influence and wealth helped them to secure from the New York legislature a thirty-year monopoly to navigate steamboats in the waters of New York State that authorized them to seize any steamboats operated by an unlicensed party. The monopoly engendered resentment from the public, who were forced to pay higher transportation prices. Many people rightly viewed it as an example of influence peddling.2 When some New Yorkers challenged the monopoly in court, the state’s highest court ruled that until Congress enacted conflicting laws, the state had the sovereign authority to create monopolies for steamboats.3

  At the same time that Fulton and Livingston were establishing their steamboat company, Aaron Ogden, a former New Jersey governor and U.S. senator, established a company of his own to run a ferry from New York City to Elizabethtown (now Elizabeth), New Jersey. Ogden was as combative as he was ambitious. Ogden lobbied New Jersey to pass a law that prohibited steamboats registered in New York from New Jersey waters. He used this to pressure Fulton to grant him a license to run his ferry in New York waters.4

  Ogden then formed a partnership with Thomas Gibbons, a wealthy South Carolina lawyer. At first, Ogden and Gibbons were a great team, but Gibbons had a mean temper. After Ogden tried to interfere in a dispute between Gibbons and his daughter, Gibbons responded angrily. He challenged Ogden to a duel and even threatened him with a horsewhip.5 The partnership collapsed. Gibbons sought revenge by establishing a new partnership with the young Cornelius Vanderbilt, the future titan of New York railroads and shipping, who captained Gibbons’s ferry from Elizabethtown to New York. Gibbons received a license “to navigate the waters of any state by steamboat” from the federal government under the Federal Coasting Act of 1793. In 1820, Ogden won an injunction in a New York court to stop Gibbons from infringing on his exclusive license, and Gibbons appealed to the U.S. Supreme Court.6 This battle set the stage for one of the most significant decisions of Marshall’s era on the Court.

  Though the controversy was popularly dubbed the Great Steamboat Case, much more was at stake. The real issue was how to define the powers of the states and the federal government. New York, Connecticut, and New Jersey had all asserted exclusive authority over their own waterways and prohibited steamships chartered by other states. The dispute threatened to spread and strangle navigation among the states at a time when Congress was again considering legislation to finance improvements to the nation’s roads and canals. Both Presidents Madison and Monroe had vetoed such legislation on the grounds that in their view Congress had no power over internal improvements. Southern Republicans resisted any suggestion that the federal government could regulate commerce. If the national government could encroach on New York’s waters in this way, what else might Congress do? Southerners worried that their “peculiar institution” might be vulnerable to federal regulations. Virginia Congressman John Randolph warned that if Congress had broad authority to regulate commerce “they may emancipate every slave in the United States.”7

  On Wednesday morning, February 4, 1824, the Supreme Court chamber was mobbed with attorneys, members of the press, and spectators who spilled out into the hallway. Massachusetts Senator Daniel Webster and Attorney General William Wirt represented Gibbons. Two former New York attorneys general—Thomas J. Oakley and the prominent lawyer Thomas Addis Emmet—represented Ogden. A few minutes after eleven, Marshall dipped the nib of his pen, pulled up the sleeves of his robe, and nodded silently to Senator Webster to begin. Five days of brilliant and often fiery rhetoric followed.8

  There were two basic questions before the Court: first, whether Congress had the power to regulate navigation, and if so, whether Congress had, in fact, displaced New York’s authority over its own waterways. Webster argued that Congress’s power to regulate commerce was comprehensive and exclusive. He asserted that the Constitution left no room for the states to grant any monopolies or restraints on trade. “The very object intended, more than any other, was to take away such power. If it had not so provided, the constitution would not have been worth accepting.”9 Webster pointed out that the states’ power
s to maintain roads and bridges, or impose quarantines, were merely “police powers” rather than the power to regulate commerce itself.10 In enacting the 1793 act, Congress had granted to Gibbons a right to navigate the waters of any state, and under the Constitution, federal law must be supreme over conflicting state law.11

  After Webster’s powerful performance, the spectators wondered what Oakley could possibly argue in rebuttal, but Ogden’s attorney did not seem rattled. He responded with the cool confidence of a master.12 Rather than dispute the power of the federal government, Oakley asserted that nothing in the Constitution forbids states from exercising power over commerce.13 The Constitution limited certain powers of states, such as the power to impose tariffs. Oakley suggested that this must mean that states retained concurrent authority to regulate other aspects of commerce.14 All that New York State had done was to prohibit a steamboat from entering New York’s waters. Oakley argued that restricting navigation was not the same thing as banning commerce. Nothing in the Constitution gave Congress an exclusive power to regulate navigation within the territory of the states.15

  Wirt gave the final rebuttal to Ogden’s lawyers. The Court stood at the threshold of a momentous decision whether to permit states to restrict the growth of the national market or whether to uphold the supremacy of federal law. Wirt warned that “if the spirit of hostility, which already exists in three of our States, is to catch by contagion, and spread among the rest . . . what are we to expect? Civil wars have often arisen from far inferior causes, and have desolated some of the fairest provinces of the earth.” The attorney general solemnly concluded that “if you do not extirpate the seeds of anarchy which New-York has sown; you will have civil war.”16

  A few days after the argument, Marshall stumbled on the cellar door of his boardinghouse. He suffered bruises to his head and a dislocated shoulder that caused him enormous pain. Marshall was unable to deliver his opinion for three weeks while he recovered. On March 2, 1824, Marshall read the Court’s unanimous decision with one arm in a sling. His voice was still weak, but his words struck a bold chord. He slowly read out his opinion—an opinion that would define the scope of federal power for centuries.

  The chief justice began by rejecting a narrow reading of the Constitution’s text. “It has been said, that these powers ought to be construed strictly. But why?” Nothing in the Constitution countenanced such a rule. “We do not, therefore, think ourselves justified in adopting it.” Keeping faith with the Constitution required the Court to interpret it. The Court eschewed a “narrow construction, which would cripple the government, and render it unequal to the object for which it is declared to be instituted.”17 Marshall interpreted Article I of the Constitution granting Congress the “power to regulate commerce with foreign nations, and among the several States and with the Indian tribes.” Ogden’s counsel argued that commerce was limited to “traffic, to buying and selling, or the interchange of commodities.” Ogden was ferrying people, not goods. Marshall affirmed that commerce is more than commodities; it is commercial “intercourse,” which “[a]ll America understands . . . comprehends navigation.”18 In fact, this was far from clear. But Marshall insisted it would be “absurd, as well as useless,” to grant Congress the power to regulate commerce and not include navigation.19

  Did Congress’s power to regulate navigation reach inside the territorial waters of a sovereign state? That depended on the meaning of commerce “among the several states.” Here Marshall argued that “[a] thing which among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each state, but may be introduced into the interior.”20 This was another bold maneuver by Marshall, subordinating the territorial sovereignty of the states to the federal government’s commerce powers. If Congress’s regulatory powers stopped at the border of each state, the power to regulate commerce would be nugatory. “The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists.”21 In other words, no territory was out of reach of the federal power.

  What then is the power that Congress exercises? “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”22 The Constitution expressly prohibited certain acts like ex post facto laws (laws that punish people after the fact). But apart from these explicit limits, Congress’s authority to regulate commerce was limited only by the political restraints exercised by the people on their elected representatives. Congress’s power was plenary and as absolute as if it had been granted to a single government rather than a federal entity.23 Marshall came close—but did not assert—that the federal power was exclusive and that states had no power to regulate commerce. Since Congress had exercised its authority by adopting the Federal Coasting Act under which Gibbons’s steamboat was properly licensed, the New York law that prohibited Gibbons from the New York waters was invalid.

  Marshall had been speaking for nearly an hour. He was exhausted, and the courtroom spectators leaned forward to hear his closing passage: “Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction, into the narrowest possible compass, and that the original powers of the States are retained . . . may, by a course of well digested, but refined and metaphysical reasoning . . . explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use.”24

  Justice Johnson wrote a concurring opinion that Marshall apparently participated in drafting.25 It went even further than the Court’s opinion and expressed what was almost certainly Marshall’s own view of the federal government’s power. Johnson traced the history leading up to the adoption of the Constitution and concluded, “The ‘power to regulate commerce,’ here meant to be granted, was that power to regulate commerce which previously existed in the States.” The power to regulate commerce can only reside in one sovereign state, and therefore “the power must be exclusive . . . leaving nothing for the State to act upon.”26 This meant that if Congress repealed the Federal Coasting Act, New York still could not prohibit Gibbons from navigating New York’s waters.27 Once the states gave up their power to Congress, “[state] laws dropped lifeless from their statute books, for want of the sustaining power, that had been relinquished to Congress.”28 Though Marshall did not sign onto Johnson’s concurrence, there’s little doubt it expressed his own conviction that federal power was exclusive.

  * * *

  —

  THE SUPREME COURT’S holding in the Great Steamboat Case was generally well received throughout the country. When the United States, a steamboat registered in Connecticut, arrived in New York Harbor a few days after the Court’s decision, it was met by a huge cheering crowd. When two steamboats arrived at Augusta, Georgia, they were greeted by a band and rifles firing a salute.29 The Supreme Court had liberated the steamboat industry from the constraints of monopoly. The New-York Evening Post called Marshall’s opinion “one of the most able and solemn opinions that has ever been delivered by any Court . . . Many passages indicate a profoundness and a forecast, in relation to the destiny of our confederacy, peculiar to the great man who acted as the organ of our court.”30

  In its time, Gibbons was understood primarily as a blow against monopolies in favor of competition. Newspapers in the Northeast hailed Marshall’s decision as increasing competition in their markets. A New Jersey newspaper proclaimed that “the waters are now free, and those who heretofore held with an iron gasp, and exercised with unfeeling perverseness, their precarious power will not perhaps lament, when it is too late, the rashness and severity which has involved them in embarrassment, if not ruin.”31

  More sur
prising, perhaps, was the response in the South. Newspapers in Kentucky, South Carolina, Virginia, and Georgia praised Marshall’s decision for promoting transportation. One Missouri newspaper assured New Yorkers “that it is a decision approved of in their sister States.”32 Marshall’s bold statement of federal power was overlooked perhaps because Marshall had not quite endorsed Johnson’s arguments for an exclusive federal power. One of the few critical voices against Marshall’s opinion was his own hometown newspaper. The Richmond Enquirer warned that Marshall’s opinion threatened to “stretch the power of the Government by a most liberal construction” and warned that “the State Governments would moulder into ruins, upon which would rise up one powerful, gigantic and threatening edifice.”33

  By stripping away the monopoly that state legislatures had often corruptly granted to Fulton, the Supreme Court had opened up the country’s interior and coastline and would hasten the creation of a national market. Farmers in the South would now be able to reach distant markets at a lower cost. Steamboat fares immediately fell throughout the country, and in New York alone, the number of steamboats serving the state rose from six to forty-three in the first year.34

  Gibbons formed the foundation for the regulatory authority of the federal government. Virtually all the regulatory authority that the federal government exercises today—whether over the environment, occupational health and safety, banks, securities markets, labor, transportation, and even terrorism and crime—derives from Marshall’s expansive reading of the commerce clause in Gibbons. Without Marshall’s decision, a truly national economy would not have been possible. Instead, we would have had fifty competing state economies with different regulatory systems unable to harmonize their laws to promote the common good.