Sunday, June 7, 2020


 This time google dropped my use of Courier font for all Supreme Court quotations, so I wouldn't have to struggle blocking them--which google doesn't like. I've now used Verdana bold, so let's see what happens. Sorry for the inconvenience.


Gibbons v. Ogden (1824), presented the same threshold constitutional question that existed in M’Culloch v. Maryland (1819): From whence came the power for Chief Justice John Marshall’s Supreme Court to decide either M’Culloch or Gibbons? The short answer is found in the exceptionally long, much earlier unanimous Marshall opinion for the Court in the seminal case of Marbury v. Madison (5 U.S. 137 (1803)).

Before the Court in Marbury was the question of whether a federal statute was within the “original” jurisdiction of the Supreme Court, meaning whether a litigant could bypass the lower courts and begin the case “originally” in the Supreme Court.

The Supreme Court decided that two Constitutional provisions were applicable.

Article III, Section 1, paragraph 1, provided that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Article III, Section 2, Paragraph 2, provided that “[in] all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction.”

The court decided that it could decide whether the federal statute was constitutional (what other body could?)

Then, Marshall posited the following question. Given that the Supreme Court possessed the power of judicial review, is any federal statute that conflicts with the Constitution valid, and if it is not does the Supreme Court have to power to invalidate that law? The Chief Justice’s answer would establish from that day to this a bedrock principle of American constitutional law: A statute conflicting with the Constitution is not valid, and the Court possesses the power to declare it unconstitutional. As Professors Nowak and Rotunda have written:

Marshall’s argument for judicial review — the power of courts to invalidate laws as unconstitutional — is deceptively simple. The essence of the argument is his first point, that “it is emphatically the province and duty of the judicial department to say what the law is.” Having previously recognized the Constitution as being the superior “law” in the nation, Marshall, with this statement, lays claim to the judiciary’s final authority on matters of constitutional interpretation. It is this concept of the Constitution as law, and the judiciary as the institution with the final responsibility to interpret that law, that is the cornerstone of judicial review today.[1] (Italic in original.)

Which brings us to this case, Gibbons v. Ogden.

Thanks to Chief Justice John Marshall’s 1819 “not prohibited” M’Culloch v. Maryland decision/opinion, virtually every conceivable subject has since been grist for Congress’s Article I, section 8 mill—with severe consequences for republican institutions, individual rights, and limited government. Countless Supreme Court cases have relied heavily on M’Culloch to justify almost unlimited congressional power, especially when exercised under the Commerce Clause.

That Clause was rooted in what Alexander Hamilton had discussed in Federalist 22: That a serious defect in the Articles of Confederation was “the want of a power [in a central government] to regulate commerce.” Such a lack would, and did, allow states to erect trade barriers against other states, causing a restriction in the free flow of commerce and the resulting restraint on our new nation’s economic growth. The Constitutional Convention’s solution to that problem was the Interstate Commerce Clause:

The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes. (My emphasis.)

The two words I have emphasized — “regulate” and “commerce”— would require what one would think was easy definition by the Supreme Court. After all, both words were in common use during the founding.

The foundation for what would become an extremely broad interpretation of the Commerce Clause was laid in Gibbons, the offspring of Chief Justice John Marshall’s M’Culloch decision/opinion.

The questions for the Supreme Court in Gibbons were (1) whether the constitutional term “commerce” included navigation across the Hudson River, which separated New York and New Jersey, and (2) what the limitations, if any, were on Congress’s power to “regulate” that “commerce.”

Marshall easily disposed of the navigation question. Navigation was “commerce” within the Commerce Clause:

The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with the Indian tribes.’ It may, of consequence, pass the jurisdictional line of New-York . . . .”[2]

But what about the regulatory power over commerce delegated to Congress by Article I, section 8 of the Constitution? Marshall’s answer:

It is the power to . . . prescribe the rule by which commerce is to be governed. 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. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar [by the lawyers during oral argument]. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. (My italics.)

There are two important points here. One is that Marshall, as he had written in M’Culloch, saw the power of Congress restrained only by limitations expressly “prescribed in the constitution,” a far cry from the Founders’ textual grant of only specifically delegated powers.

Second, according to Marshall, Congress is “sovereign”— defined by Black’s Law Dictionary as “[a] person, body or state in which independent and supreme authority is vested.” That authority is “plenary,” meaning, according to Black’s, “[f]ull, entire, complete, absolute, perfect, unqualified.”

Thus, according to the Chief Justice and a unanimous Supreme Court, the Commerce Clause grants the supremely independent sovereign Congress the power to exercise absolute power over anything of an interstate nature unless some provision of the Constitution expressly prohibits that regulation.

As Marshall wrote,

[t]he genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of the state then, may be considered as reserved for the state itself.

Modest sentiments from the arch-federalist Chief Justice, as we shall see, and ones that would rarely be observed.

Let us close on a more modern interstate commerce case, Champion v. Ames, 188 U.S. 321 (1903).

The Tenth Amendment reserves to the states their power to legislate for the public health, safety, welfare, and morals. This is the so-called “police power” (which has nothing to do with cops and squad cars). If those powers are reserved to the states by the Tenth Amendment, one would think that the federal government does not possess them.

If the Tenth Amendment and reserved state police powers mean anything, gambling should hardly be a federal concern. Poker games, football pools, and horseracing are all inherently local activities. But wait. Marshall and other federalists could argue that the playing cards travel in interstate commerce, as do the gamblers and horses (let alone the hay they eat). Radio and television broadcasts of high-stakes poker, the Super Bowl and Kentucky Derby are certainly involved in interstate commerce. So, why couldn’t the federal government regulate those activities under the Commerce Clause? Or, for that matter, why not lotteries?

Once upon a time the federal government decided that it frowned on that form of gambling. To do something about it, the direct legislative approach would have been for Congress simply to prohibit lotteries. But some congressional staff lawyer must have figured out — despite the ammunition provided a century earlier by Chief Justice John Marshall and his colleagues in M’Colluch and Gibbons — that the lotteries’ connection with interstate commerce was too tenuous to invoke the Interstate Commerce Clause as authority for the prohibition.

Congress’s innovative solution was to enact the Federal Lottery Act of 1895. It prohibited not the lotteries themselves, but rather the interstate transportation of lottery tickets. Obviously, if lottery tickets could not move in interstate commerce, the transportation ban would put a large dent in lotteries.

But how to justify the prohibition constitutionally?

Here’s what the Supreme Court said:

Lottery tickets are subjects of traffic and therefore are subjects of commerce and the regulation of the carriage of such tickets from state to state at least by independent carriers or trains is a regulation of commerce among the several states.


But what about that pesky textual problem, where the Constitution delegates to Congress the power only to regulate, not enact a total prohibition?

Well, had he still been around, Marshall would have responded that there was nothing in the Constitution prohibiting Congress from banning the interstate transportation of lottery tickets (M’Colluch), and that as a “sovereign” (Gibbons) Congress “independently” possessed “absolute” power over interstate commerce.

With Marshall and his Court long gone, the days of unanimous decisions/opinions were gone also.

The Champion dissent argued, correctly but unsuccessfully, that prohibiting the transportation of lottery tickets was in the nature of a police power reserved to the states under the Tenth Amendment, that under the Constitution’s Article I, section 8, Congress does not possess any comparable police powers, and that traffic in lottery tickets was not “commerce.”

Champion was only one of a plethora of tortuous decisions by the Supreme Court that twisted the meaning of the Commerce Clause’s two most important words, “regulate” and “interstate,” in order to accomplish a “social good”—namely, depriving degenerate lottery players of their gambling pleasures because other people thought gambling was “wrong.”

Coming up, are more modern Supreme Court cases where Congress and the Court joined forces to make a mockery of the Interstate Commerce Clause, individual rights, and limited government, all by sacrificing the interests of some Americans at the altar of others’ perceived collectivist needs.


[1] Nowak, John H. and Rotunda, Ronald D. Constitutional Law (7th Ed.) 5.

The late Yale University law professor Fred Rodell summed up Marshall’s achievement this way: “John Marshall, by fastening on a petty point of proper legal procedure in an essentially insignificant case, by attacking a harmless bit of a statute that had been enacted not by Republicans but by Federalists, by handing his political opponents, with magnificent opportunism, a strictly Pyrrhic victory, established the supremacy of the judiciary over the rest of the federal government.” (Rodell, Fred, Nine Men: A Political History of the Supreme Court From 1790 to 1955

[2] Note that Marshall incorrectly quotes the Commerce Clause, twice substituting twice the word “or” for the Constitution’s “and.”

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