I wrote this post over two years ago… but it’s critical today. Hope you enjoy!
Gibbons v. Ogden (1824) was the first Supreme Court case to interpret the meaning of the commerce clause in the Constitution. And in case you didn’t know, the Constitution’s commerce clause is the source of most of Congress’ claim to power today. So, as Americans, it’s important to understand what initially got us to where we are now.
And before I launch into this, as fun as it would be to delve into all of the controversy surrounding the commerce clause, I want to try to step through the way our government has grown in power—-by giving each expansion to you one spoonful at a time. Realize though, that the commerce clause IS very important. If you need a refresher read one of my recent posts, A Tale of Three Laws, to remind yourself. Remember, it was the commerce clause that Congress used to establish a federal drinking age and is currently being used to justify the provisions in many of the bills Congress is looking to pass in an effort to provide relief from the fallout of the coronavirus.
One: What Is The Commerce Clause?
So, let’s first refresh ourselves on what the infamous “commerce clause” actually says.
“Congress shall have the power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.
Yup, that’s it. That’s the extent of it. The Constitution gave Congress the power to regulate or make laws regulating commerce among the states, with the Indian tribes and, naturally, with foreign nations.
Two: The Reason For The Commerce Clause
From a purely logical and historical standpoint, the inclusion of the commerce clause in the Constitution makes perfect sense. Think about it from the founder’s perspectives. They were trying to get out of a potentially chaotic and anarchic situation under the Articles of Confederation—a situation where every state had their own currency and regulated their own commerce among each other and other nations. This was not obviously working out. How could legitimate commerce occur among the states when every state had different laws and expectations regarding commerce? Without a clear, coherent set of laws to dictate that, commerce was just a source of confusion and chaos.
The founders wanted to make sure to avoid such anarchy and chaos (which, according to Locke and Hobbes leads to a state of war—usually ending up in a tyranny) and therefore made provision for that by granting to Congress the power to regulate and oversee commerce “among the several States”. This allowed the country to have universal, coherent and consistent laws regulating the commercial transactions taking place across states.
Key takeaway: It was NOT included as a way to give Congress unlimited power or the ability to give itself the power to make laws about anything not originally bequeathed to them by the Constitution.
Three: The Significance of the Courts’ Expanded Power as a Result of Marbury v. Madison (1803)
Need I remind you? In one of my older posts, I detail the game changing outcome of the Marbury v. Madison (1803) Supreme Court case. In this case, the Supreme Court granted itself the power of judicial review (the ability for the courts to declare a federal or state law unconstitutional—essentially the power to interpret the Constitution as it wills).
Remember this as we look at the Gibbons v. Ogden case below. It is because of the Court given court power of interpretation and judicial review that Congress’s power was able to be expanded as it was in Gibbons v. Ogden.
Four: Congress Doesn’t Mind These Rulings Because It Gives the Federal Government More Power
Please, also remember that Congress is quite alright with the courts becoming more and more powerful as long as that growing judicial power also contributes to expanding Congressional power.
Madison’s premise that “ambition must be made to counteract ambition” suffers here for a few reasons. He assumed that the three branches would keep each other accountable and, in check, because each branch had a vested interest in keeping, maintaining and growing its own power— usually at the expense of the other branches’ power. So, each branch would, therefore, punish the other branches for growing their power too much—since such growths in power would likely threaten the power of the other branch.
However, in the case of judicial growth, its growth in power has actually resulted in growth in legislative and executive power—in the example of Gibbons vs. Ogden, it was the legislative whose power benefited from ever expanding judicial power.
Now, this is not to say that the executive hasn’t also greatly benefited from growth in judicial power—-if you need a reminder, simply go read my write up on the sole organ doctrine.
This whole reality is a fascinating tragedy. Both the legislative and the executive actually have a vested interest in allowing, perhaps even supporting, the growth and expansion of judicial power.
Because, as history has shown, the more powerful the judicial branch has become, the more powerful the executive and legislative have become in turn. Now, the judicial branch is able to interpret the Constitution at will, bequeathing immense amounts of power to the executive and legislative branches.
Is this making sense? I want you to understand this and have a foundation in this reality as you read the little story surrounding Gibbons vs. Ogden. Consider the way in which federal power has grown. It has grown via the Court. The stronger the Court’s power to interpret and define the Constitution, the stronger the other branches’ power have become.
The court’s growth in power has not resulted in checking and severely limiting the other two branch’s power (if it had, the other two branches would likely have checked judicial power much more actively and aggressively); rather, it has resulted in an ever expanding, fluid and growing interpretation of legislative and executive Constitutional power.
Five: Gibbons v. Ogden Set the Stage for Great Congressional Power
So, let’s take a look at simple case whose outcome dramatically grew Congressional power…naturally at the expense of state power. The Gibbons v. Ogden case is rather straight forward.
So, in 1798, the state of New York agreed to grant Robert Fulton and his backer, Robert R. Livingston, a monopoly on steamboat navigation in state waters. Fulton and Livingston would receive the grant if they developed a steamboat capable of traveling 4 miles (6.4 km) per hour upstream on the Hudson River. Fortunately for them, they did so and received the grant (and monopoly) in 1807.
Now, Aaron Ogden was a competitor at the time and didn’t like the monopoly. However, he eventually purchased a “franchise” of sorts from Fulton and Livingston, joining the monopoly and giving him the exclusive right to operate steamboats between New York City and New Jersey.
Aaron Ogden and Thomas Gibbons became partners but eventually had a falling out. Gibbons, then, with his own steamboat company, went to the federal government and received a grant under Congressional law to operate his steamboats in the same waters as Ogden but without the New York state authority of Fulton and Livingston.
Ogden, frustrated at Gibbons, sued Gibbons for this in the state court.
Ogden won in the state of New York, and the court issued an injunction to stop Gibbons from operating his steamboats.
This win was eventually brought before John Marshall’s (sound familiar?) Supreme Court where Gibbons claimed he was validly operating his boats pursuant to an order of Congress and as a result, had exclusive power under the Constitution to regulate commerce between the states.
The Court ruled in favor of Gibbons and declared that when Congress and a state pass conflicting laws regulating interstate commerce, the federal law will supersede or trump the state law.
This case essentially answered the following question with a resounding no: Can states regulate interstate commerce within its borders when Congress also regulates the same area of interstate commerce?
Ultimately it established that Congress was supreme over states on all issues of commerce.
Now, the result of this case was twofold. On one hand, it was a win. It stopped a business monopoly from taking hold and allowed healthy competition among steamboat companies—something in which the state of New York was evidently not heavily invested.
It was also a win for Congress. They were bequeathed the legal justification to say that federal law trumps state law in a litany of other situations at the time and to come.
And this is where we now must struggle with the loss as well. Ever since this simple, albeit, game-changing case, the Court has set the precedent of interpreting the commerce clause in favor of the federal government in almost every subsequent case. In doing so, the Court has handed over immense amounts of power to the legislative branch——simply by stating what they (the Court) believe the Constitution means. The Constitution truly is now more embodied by the Supreme Court than by the Constitution itself and Congress certainly is not going to complain.
American history is littered with various historical moments that reveal how and why our federal government is the way it is today. Unfortunately, most Americans are naive enough to assume that the bloated nature of the federal government today is to be expected and even demanded.
I write these posts to hopefully expose the flaw in this uninformed and misguided belief. The power our federal government has today was not the power they used to have or were ever supposed to have.
There is one other check on federal power (aside from the three branches of government): the states and their people. Unfortunately, this check has been severely weakened, to the point that, it can hardly be called a check.
And it won’t be, until we actually decide to embody that fourth check.
The Liberty Belle