From Gibbons v.

« From Gibbons v.

Ogden In order for the United States to develop interstate and international commerce, the Constitution gave Congress the power to regulate trade between states and foreigncountries.

The extent of Congress’s regulatory power remained vague until 1824, when the nature of the commerce clause in the Constitution came into question with thecase of Gibbons v.

Ogden .

In 1807 Robert Fulton and Robert Livingston acquired a monopoly of steam navigation in the waters of the state of New York.

Fulton and Livingston granted a license to Aaron Ogden to navigate these waters.

A third party, Thomas Gibbons, held a federal license and began running a competitive line in 1818.Ogden received a restraining injunction from the state courts, but Gibbons appealed to the Supreme Court of the United States.

Chief Justice John Marshall found thatGibbons’s federal license nullified Ogden’s grant of a monopoly from New York state.

This broad interpretation of congressional authority strengthened federalism. From Gibbons v.

Ogden Mr.

Chief Justice Marshall delivered the opinion of the Court. As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as having some influence on its construction, reference hasbeen made to the political situation of these States anterior to its formation.

It has been said that they were sovereign, were completely independent, and wereconnected with each other only by a league.

This is true.

But, when these allied sovereigns converted their league into a government, when they converted theirCongress of Ambassadors, deputed to deliberate on their common concerns and to recommend measures of general utility, into a Legislature, empowered to enactlaws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fairconsideration of the instrument by which that change was effected. This instrument contains an enumeration of powers expressly granted by the people to their government… We know of no rule for construing the extent of suchpowers other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred. The words are, 'Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent ofthe power, it becomes necessary to settle the meaning of the word.

The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange ofcommodities, and do not admit that it comprehends navigation.

This would restrict a general term, applicable to many objects, to one of its significations.

Commerce,undoubtedly, is traffic, but it is something more: it is intercourse.

It describes the commercial intercourse between nations, and parts of nations, in all its branches,and is regulated by prescribing rules for carrying on that intercourse.

The mind can scarcely conceive a system for regulating commerce between nations which shallexclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined toprescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter. If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constituteAmerican vessels or requiring that they shall be navigated by American seamen.

Yet this power has been exercised from the commencement of the government, hasbeen exercised with the consent of all, and has been understood by all to be a commercial regulation.

All America understands, and has uniformly understood, theword 'commerce' to comprehend navigation.

It was so understood, and must have been so understood, when the Constitution was framed.

The power over commerce,including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it.

Theconvention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late. The word used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning, and a power to regulatenavigation is as expressly granted as if that term had been added to the word 'commerce.' To what commerce does this power extend? The Constitution informs us, to commerce 'with foreign nations, and among the several States, and with the Indiantribes.' It has, we believe, been universally admitted that these words comprehend every species of commercial intercourse between the United States and foreign nations.

Nosort of trade can be carried on between this country and any other to which this power does not extend.

It has been truly said that 'commerce,' as the word is used inthe Constitution, is a unit every part of which is indicated by the term. If this be the admitted meaning of the word in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unlessthere be some plain intelligible cause which alters it. The subject to which the power is next applied is to commerce 'among the several States.' The word 'among' means intermingled with.

A thing which is among othersis intermingled with them.

Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or betweendifferent parts of the same State, and which does not extend to or affect other States.

Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one.

The phrase is not one which wouldprobably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particularclasses of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description.

Theenumeration presupposes something not enumerated, and that something, if we regard the language or the subject of the sentence, must be the exclusively internalcommerce of a State.

The 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 tothose 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 withwhich it is not necessary to interfere for the purpose of executing some of the general powers of the government.

The completely internal commerce of a State, then,may be considered as reserved for the State itself. But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States.

It would be a very uselesspower if it could not pass those lines.

The commerce of the United States with foreign nations is that of the whole United States.

Every district has a right toparticipate in it.

The deep streams which penetrate our country in every direction pass through the interior of almost every State in the Union, and furnish the meansof exercising this right.

If Congress has the power to regulate it, that power must be exercised whenever the subject exists.

If it exists within the States, if a foreignvoyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State. This principle is, if possible, still more clear, when applied to commerce 'among the several States.' They either join each other, in which case they are separated by amathematical line, or they are remote from each other, in which case other States lie between them.

What is commerce 'among' them, and how is it to be conducted?. »