Commerce Clause 1800s-1830s

Chief Justice John Marshall ruled in Gibbons v. Ogden (1824) that the power to regulate interstate commerce also included the power to regulate interstate navigation: "Commerce, undoubtedly is traffic, but it is something more--it is intercourse... [A] power to regulate navigation is as expressly granted, as if that term had been added to the word 'commerce'... [T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines." The Court's decision contains language supporting one important line in the Commerce Clause jurisprudence, the idea that the electoral process of representative government represents the primary limitation on the exercise of the Commerce Clause powers:

The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from their abuse. They are the restraints on which the people must often rely solely, in all representative governments....

 In Gibbons, the court struck down New York State's attempt to grant a steamboat monopoly to Robert Fulton, which he had then ultimately franchised to Ogden, who claimed river traffic was not "commerce" under the Commerce Clause and that Congress could not interfere with New York State's grant of an exclusive monopoly within its own borders. Ogden's assertion was untenable: he contended that New York could control river traffic within New York all the way to the border with New Jersey and that New Jersey could control river traffic within New Jersey all the way to the border with New York, leaving Congress with the power to control the traffic as it crossed the state line.

Thus, Ogden contended, Congress could not invalidate his monopoly if transported passengers only within New York. The Supreme Court, however, found that Congress could invalidate his monopoly since it was operational on an interstate channel of navigation.

In its decision, the Court assumed interstate commerce required movement of the subject of regulation across state borders. The decision contains the following principles, some of which have since been altered by subsequent decisions:

• Commerce is "intercourse, all its branches, and is regulated by prescribing rules for carrying on that intercourse."
• Commerce among the states cannot stop at the external boundary of each state, but may be introduced into the interior.
• Congress can regulate, that is "to prescribe the rule by which commerce is to be governed" that "may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution."

Additionally, the Marshall Court limited the extent of federal maritime and admiralty jurisdiction to tidewaters in The Steamboat Thomas Jefferson.

In Cherokee Nation v. Georgia (1831) the Supreme Court addressed whether the Cherokee nation is a foreign state in the sense in which that term is used in the US Constitution. The Court provided a definition of Indian tribe that clearly made the rights of tribes far inferior to those of foreign states:

Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be dominated foreign nations. They may, more correctly be dominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

x-----x

This blog entry is sponsored by Nescafé Gold.