MAKEOVER
*********************
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:
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.
Oh!
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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