by Martin Doyle
Decided in 1824, Gibbons v. Ogden would become a cornerstone case of American jurisprudence. It was heard by the Supreme Court under Chief Justice John Marshall, who was in the midst of establishing the role of the judicial branch out of the vagaries of the Constitution. This role of the judiciary in interpreting the Constitution for specific implementation, and the role that Marshall eventually adopted, is summarized in The Federalist No. 78:25
The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
The legislative branch had the clear role of establishing laws and appropriating money to carry out the functions of government. The executive branch had the authority to enact those laws. But the role of the judicial branch was less clear. At its simplest, the duty of the judicial branch was to determine when Congress passed acts that were “contrary to the manifest tenor of the Constitution.” Judicial authority extended not just over rules developed by the U.S. Congress but also over those established by the state governments, when they conflicted with the Constitution or each other: “The judiciary authority of the Union is to extend . . . to controversies between two or more States; between a State and citizens of another State; between citizens of different States.”26
In Gibbons v. Ogden, the controversy was whether one state could establish a monopoly in a way that affected interstate commerce. Given that the need for federal regulation of river commerce was the seed that sprouted into the Constitutional Convention, the Court found in favor of Gibbons. A monopoly on steamboat traffic between states was unconstitutional; New York couldn’t tell New Jersey what was or was not legal on the interstate waterway of the Hudson River. Marshall read the commerce clause of the Constitution as giving Congress—the federal government—authority over interstate commerce; that ruling became the central contribution of Gibbons v. Ogden to jurisprudence. Based on Marshall’s interpretation, “navigable waters” fell under federal authority, not the authority of the states. If you could get a boat on a river and move something commercial between states, then the federal government had authority over that piece of water. Or, as Marshall summarized it in the Court’s decision, “The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government.”27
Yet like hundreds of rulings to follow, even though the decision in Gibbons v. Ogden established the appropriate interpretation of the Constitution, the Court could not enforce that decision and would not lay out specific details of how it should be implemented. It was up to the executive branch to put judiciary branch decisions into practice; the legislative branch would then enact laws reflecting judicial interpretation. Gibbons v. Ogden reinforced the federal government’s mandate to take charge of navigable rivers, and the only federal agency with some kind of role and expertise in navigable rivers in existence at that time was the U.S. Army Corps of Engineers. Thus the Corps of Engineers became and remained the primary federal agency tasked with river engineering and management, and the Corps eventually became the engineer in chief of rivers.
Also in 1824, Congress passed one bill for the clearing of sandbars blocking navigation on the Mississippi and Ohio Rivers—both commercially navigable rivers—and another bill for surveying routes for roads and canals “of national importance.” In both instances, the executive branch tasked the Corps with responsibilities. Although the Erie Canal—an entirely intrastate waterway—was left to the State of New York, when Congress ordered the building of locks and dams along the interstate Ohio or Illinois Rivers, the Corps would do the work. Eventually the Corps became the point of contact for all riverine matters. Almost two centuries later, the Corps of Engineers oversees an immense array of river-related decisions, ranging from constructing hydropower dams on the Columbia River to managing the pseudo-riverine Everglades. When the Clean Water Act was passed in 1972, the agency charged with implementing significant portions of this new environmental protection regulation was the Corps of Engineers. This extension of constitutional interpretation likely would have stretched the imagination of Hamilton, Madison, and Jay; nevertheless, it springs from their ideas on how to interpret the Constitution as articulated in the Federalist Papers.
But Gibbons v. Ogden did something else that was just as important for the national economy, and eventually for the geography of the nation. By eliminating state-granted monopolies for river commerce, the Court’s decision opened rivers to full competition between carriers—anyone with a steamboat, flatboat, or raft. Commercial river traffic for the next century and a half would be determined not by the central authority of a canal company or a state commission, but by the whims of hundreds of independent, freewheeling boat captains who plied the muddy waters of the midsection of the continent.
CHAPTER 2
Life on the Mississippi
“Wornicott Bay. Destruction. Glassock. Fairview. Black Hills. Jackson Point.”
Donnie Randleman had just climbed the four floors of steep stairs into the wheelhouse of the towboat Christopher Parsonage. He was a bit short of breath as he spouted off these random names in response to my questions about where the boat was at that moment and what points of reference would be coming along next. Randleman is a barrel-chested, grumpy twenty-first-century towboat pilot who looks like he might be more at home at a Harley Davidson rally than in a towboat wheelhouse. He is coming up to the wheelhouse to take a turn piloting the Parsonage and relieve the boat’s captain, who has been on since 6 p.m. The captain is Robert Duty, known up and down the Mississippi River as “Howdy Duty.” He looks—and chuckles—like a young version of Santa Claus. This particular shift change occurs at midnight during an ink-black, moonless night on the lower Mississippi River, somewhere in a desolate region of northern Mississippi–Louisiana.
Howdy is finishing up his six-hour shift of piloting amid a glow of radar screens, GPS screens, and sonar readings that give him a steady stream of data: a twenty-first-century view of the Mississippi River. In addition to piloting a towboat, Howdy is a perpetual source of stories—which he strings together one after another. Each bend in the river or each pilot that passes by reminds him of another story, most of them having to do with an event that took place on the river. And he says some of them may even be true. When Randleman arrives at the wheelhouse, waiting to take over steering the barge tow down the river, Howdy’s attention is focused intently on a narrow cylinder of light emanating from the spotlight on the roof of the wheelhouse. The light now focuses out across the river, lighting up a circular area of the riverbank that is 15 feet in diameter and a quarter mile away. Howdy occasionally swings the spotlight over to illuminate one of the passing red buoys that mark the river’s main navigation channel—a narrow ribbon of water that the pilots can trust is kept sufficiently deep for their boat. After spotting the buoy and adjusting his path slightly, Howdy swings the cylinder of light back to the riverbank to show Randleman where they are. From this brief, dark glimpse of riparian greenery on a moonless night, Randleman can pinpoint the exact location of the Parsonage within an eighth of a mile and name every upcoming bend, stop, bar, and point in their correct order—all this at midnight, before having any coffee.
This view of the Mississippi River—looking from the river out, rather than from the land in—is rare in the twenty-first century. The lower Mississippi River, from Saint Louis to New Orleans, is now an industrial superhighway. Taking a small ski boat, or even a fishing boat, on this stretch of river would be like riding a bicycle amid the trucks and trailers of the New Jersey turnpike. Howdy
and Donnie’s task on this particular run of the Parsonage is to move thirty barges to New Orleans. A barge is simply a floating container, each one 35 feet wide, 200 feet long, and up to 12 or 13 feet deep; when loaded, a barge weighs 2,000 tons. The crew straps together the barges into a collective raft, referred to as the tow. When considered as one unit, this tow being pushed by the Parsonage is 210 feet wide and 1,400 feet long, in addition to the 180-foot-long towboat itself. A barge tow of this size is large enough to hold two Titanics side by side on its top, with plenty of room to spare.
In its heyday of the mid-nineteenth century, a full boat on the Erie Canal could move a couple hundred tons; each individual barge now being pushed by the Parsonage is ten times larger than a boat on the Erie Canal. When considered as a whole, the total weight of the thirty-barge tow pushed by modern towboats like the Parsonage can exceed 60,000 tons. To appreciate just how much this is, compare it to two other modern modes of heavy transport: trains and trucks. A single barge carries the same amount of weight as sixteen fully loaded rail cars or seventy tractor-trailers. It would take over four hundred rail cars (requiring a dozen locomotives) or more than two thousand tractor-trailers to move the same amount as Howdy Duty’s boat is moving in a single tow.
Typically, boats get their maneuverability from their depth in a river, which allows their hull to work like a massive rudder. But riverboats on the Mississippi spread out the weight of the cargo over an enormous area, which allows them to carry more weight in shallow water. Piloting a barge tow is less like driving a car than flying a kite. Barge tows skim across the top of the water rather than slicing through it; and all the while, the current is moving beneath them in multiple directions. Pilots like Donnie and Howdy don’t steer the quarter-mile of barges around sweeping meander bends so much as they slide them. They have to negotiate hundreds of meander bends perfectly so that when they come out of one bend, they are positioned just right to get around the next, or to slip their barge tow through the narrow span between the bridge piers at Memphis, Greenville, or Vicksburg. They have to do all of this whether the river is flowing very low or boiling and roiling at flood stage. And they have to do all this at night as well as day. This is the reason Donnie can rattle off the names of all the upcoming waypoints along the river in the middle of the night. He must always be keeping a mental checklist of what’s coming and in what order, so that he will know how to orient the trajectory of this unwieldy craft while negotiating the upcoming sequences of turns and obstacles. Donnie, Howdy, and every other boat pilot have memorized the river.
The construction of modern barge tows itself is as impressive as the skill of the boat’s pilots. This particular run of the Christopher Parsonage is a “milk run,” picking up and dropping off individual barges along the river in addition to delivering the main tow in New Orleans. This means that the two pilots have to plan on dropping off two barges in Memphis, another in Rosedale, Arkansas, and then pick up two more in Greenville, Mississippi. The process started in Cairo, Illinois, where the deck crew began by “building tow,” the physically grueling process of taking dozens of unruly barges that were being pushed by smaller boats—amid the river’s currents—and assembling them into a single tow that the Parsonage can manage.
The deck crew of two or three men per shift jump on and off arriving barges, strapping and cabling the newly arriving barges onto the growing tow—a massive raft held together with a series of 50-foot long, inch-thick steel cables, each weighing nearly one hundred pounds. To these cables are added immense steel ratchets, chains, and hooks that give the tow deck a rusty medieval look. Building tow in the summer involves six-hour shifts of steadily lifting awkwardly shaped weights on top of a massive steel skillet that simmers and shifts in the southern heat. Howdy Duty and Donnie Randleman, like all captains, began their careers by working for years as deck hands, in Howdy’s case starting at age 18. Now, as a pilot and captain, Howdy looks down from the air-conditioned wheelhouse four stories above at the deck hands building tow and chuckles, “Yeah, it’s like prison with a chance of drowning.”
With the tow assembled, the Parsonage slips its quarter-mile-long tow into the main current of the Mississippi and heads south, away from a remarkable riverine juncture: just upstream are the Ohio and Tennessee Rivers to the east, the upper Mississippi and Illinois Rivers to the north, and the Missouri to the west. Up the Mississippi and Illinois to corn, or up the Missouri to the wheat of Nebraska and the Dakotas, or up the Ohio to Appalachian coal and Pittsburgh steel. Navigating and commerce on the Mississippi River has tied together distal economies and seemingly irreconcilable societies: a century and a half ago, going up the river led to freedom while going down the river led to slavery. Even today, the Mississippi still weaves together disparate regions. Pilots spending the days and nights along the river listen to brief radio conversations in strange accents from other boat captains: flat nasals from Wisconsin, southern drawls from Alabama, twangs from Arkansas, and the impenetrable Cajun patois from Louisiana. All these captains push all these barge tows up and down a river buzzing with traffic that is moving the heaviest, bulkiest goods of twenty-first-century America.
The Mississippi River of the early nineteenth century was, for the United States, only beginning to be appreciated and accessible. The infant United States had gained the trans-Appalachian region—extending from the western edge of the original thirteen states to the Mississippi River—with the Treaty of Paris that ended the Revolutionary War. But America had to share access to the Mississippi for years. New Orleans remained first in Spanish control, then in French control until 1803, when Jefferson acquired 828,000 square miles from France in the Louisiana Purchase. This territorial expansion not only doubled the size of the United States but also added the tremendously important port of New Orleans. With New Orleans and the Missouri River basin, combined with the rest of the Mississippi River basin that America held already, large and navigable rivers became central features of America’s geography.
These newly acquired rivers were remarkably different from those of the Atlantic coast around which the nation had formed and grown. They were especially different from the economy that had developed around the Erie Canal, where settlers and goods were concentrated along the lone commercial highway managed and operated by the New York state government. In stark comparison, the network of the Mississippi–Missouri, Mississippi–Illinois, and Mississippi–Ohio—along with countless others—was far-reaching and dendritic. The Mississippi and its associated rivers diffused settlers along their alluvial veins and into the farthest reaches of the hinterlands. On the edge of the frontier, settlers harvested wheat, coal, and cotton that were then passed along the riverine arteries toward the heart of the alluvial empire—New Orleans. This quixotic sub-sea-level city grew faster than any other American city from 1810 to 1820, when it became securely established as the country’s second-largest exporting city, behind only New York.1
By the middle of the nineteenth century, steamboats could easily pass up the hydraulic superhighway of the Lower Mississippi from New Orleans to St. Louis. Without the assistance of locks or dams, some boats then continued over 2,200 miles up the Missouri River’s winding course from St. Louis all the way to Fort Benton, Montana, where the river borders the emerging wheat fields of the Great Plains. Other steamboats plied the seemingly endless rivers, swamps, and sloughs of the Deep South for ever-lucrative cotton. Traffic along the Erie would cease for months while the canal was frozen over in winter, but New Orleans persistently teemed with business—suffering only the occasional light frost. The Mississippi River basin was the brave new world of America’s riverine landscape.
The changing technology of boats contributed to this new economy. Companies approved rapid and constant adaptations in the design of steamboats to increase their carrying capacity while making their draft shallower. The new designs allowed boats to carry heavier loads through what had previously been impenetrable tributaries, swamps, and sloughs. In the 1840s, a m
oderately sized 170-ton steamboat carrying 50 tons of freight and 80 passengers—already larger than those boats then operating on the narrow Erie Canal—could operate in only 22 inches of water. Steamboat pilots, well known to be an arrogant and competitive lot, boasted that all they needed was “a heavy dew” to run their boats. Between 1815 and 1860, the economic productivity of steamboats advanced at a rate exceeding that of any other method of transportation at the time, including railroads.2
Steamboat technology combined with the physical characteristics of southern and western rivers to create a distinctive political economy in the region: there was little reason for the government to get involved, and thus farmers and steamboat pilots were comparatively free from government tolls or intervention. When geographic barriers like the Fall Line were overcome by canal and a government-backed lock and dam, tolls were set by a central authority like a state canal commission, as much by politics as by necessity. Planning and engineering were predominant in ensuring that canal-based transportation remained open and efficient. On large rivers, however, commerce was moved by powerful steamboats that could go about their business while largely immune to the vagaries of politics and government funding. When politics and funding did enter the equation—for dredging sandbars or channelizing a particular meander bend—the goal was to ensure clear commercial navigation on interstate rivers, thus allowing the rivers to remain toll-free. Steamboat pilots could be very independent because the rivers of the Deep South and Midwest were massive in comparison to their eastern or northern counterparts. The Erie Canal was 4 feet deep and 40 feet wide when it opened in 1825, and it could handle boats up to 30 tons; when initially expanded in 1862, it was 7 feet deep and boats up to 240 tons could pass through. In 1860 a steamboat plying the Mississippi could carry over six hundred tons of freight, excluding passengers, and operated independently of anything other than occasional docks needed for loading and unloading. The Mississippi and Missouri were often thousands of feet wide, and their primary tributaries—the Ohio, Tennessee, Illinois, Iowa—were not much smaller. The skill involved in piloting western rivers was adjusting the path of the boat rather than the path of the river. Engineers who designed canals were respected, but steamboat pilots on the Mississippi were revered. Any pilot who could steer a steamboat, or any entrepreneur with a flatboat, had the ability to move among thousands of miles of waterways to make their fortune.3