Gibbons v. Ogden

[Chief Justice Marshall delivered the opinion of the Court. Johnson, J., concurred separately, and a portion of his opinion follows the Court’s. The 1824 reporter prints roughly 185 pages of the argument of counsel before the opinion begins; all of it is omitted here. This is an edited text, and every cut is marked: the Court’s treatment of the New-York acts as an asserted exercise of concurrent state power, the detailed statutory analysis of the enrolment and licensing acts, and the digression on inspection and quarantine laws are summarized in brackets rather than reproduced. Obvious typographical errors in the source have been silently corrected; nothing else in the Court’s language has been altered. The transcription this text is taken from modernizes a handful of spellings the 1824 reporter set differently — “New York” and “New Jersey” without the hyphen, “enrollment,” “steamboat” — and they are reproduced as that source gives them, which is why the Court’s text and the editorial notes around it are not always spelled alike.]

[The case came here on appeal from the Court for the Trial of Impeachments and the Correction of Errors of the State of New-York. Several acts of the Legislature of New-York had secured to Robert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that State with boats moved by fire or steam, for a term of years not yet expired, and had authorized the Chancellor to enjoin any person whatever from navigating those waters with boats of that description. The right to navigate between Elizabethtown and other places in New-Jersey and the city of New-York was assigned from Livingston and Fulton to John R. Livingston, and from him to Aaron Ogden. Thomas Gibbons ran two steam boats, the Stoudinger and the Bellona, on that route. Ogden filed his bill in the Court of Chancery of New-York and obtained an injunction. Gibbons answered that his boats were duly enrolled and licensed to be employed in carrying on the coasting trade under the act of Congress of February 18, 1793, “An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the same,” and insisted on his right under those licenses to navigate the waters between Elizabethtown and the city of New-York. The injunction was sustained below and the decree affirmed by the Court for the Trial of Impeachments and the Correction of Errors. Gibbons appealed.]

The appellant contends that this decree is erroneous because the laws which purport to give the exclusive privilege it sustains are repugnant to the Constitution and laws of the United States.

They are said to be repugnant:

1st. To that clause in the Constitution which authorizes Congress to regulate commerce.

2d. To that which authorizes Congress to promote the progress of science and useful arts.

The State of New York maintains the Constitutionality of these laws, and their Legislature, their Council of Revision, and their Judges, have repeatedly concurred in this opinion. It is supported by great names — by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority, but it is the province of this Court, while it respects, not to bow to it implicitly, and the Judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the States expect from this department of the government.

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 has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns and to recommend measures of general utility, into a Legislature, empowered to enact laws 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 fair consideration of the instrument by which that change was effected.

This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized “to make all laws which shall be necessary and proper” for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a “strict construction?” If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor if retained by himself, or which can enure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or lie dormant. We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connexion 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 of the 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 of commodities, 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 shall exclude 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 to prescribing 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 constitute American vessels or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word “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. The convention 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.

If the opinion that “commerce,” as the word is used in the Constitution, comprehends navigation also, requires any additional confirmation, that additional confirmation is, we think, furnished by the words of the instrument itself.

It is a rule of construction acknowledged by all that the exceptions from a power mark its extent, for it would be absurd, as well as useless, to except from a granted power that which was not granted — that which the words of the grant could not comprehend. If, then, there are in the Constitution plain exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to which they applied as being granted.

The 9th section of the 1st article declares that “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another.” This clause cannot be understood as applicable to those laws only which are passed for the purposes of revenue, because it is expressly applied to commercial regulations, and the most obvious preference which can be given to one port over another in regulating commerce relates to navigation. But the subsequent part of the sentence is still more explicit. It is, “nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties, in another.” These words have a direct reference to navigation.

The universally acknowledged power of the government to impose embargoes must also be considered as showing that all America is united in that construction which comprehends navigation in the word commerce. Gentlemen have said in argument that this is a branch of the war-making power, and that an embargo is an instrument of war, not a regulation of trade.

That it may be, and often is, used as an instrument of war cannot be denied. An embargo may be imposed for the purpose of facilitating the equipment or manning of a fleet, or for the purpose of concealing the progress of an expedition preparing to sail from a particular port. In these, and in similar cases, it is a military instrument, and partakes of the nature of war. But all embargoes are not of this description. They are sometimes resorted to without a view to war, and with a single view to commerce. In such case, an embargo is no more a war measure than a merchantman is a ship of war because both are vessels which navigate the ocean with sails and seamen.

When Congress imposed that embargo which, for a time, engaged the attention of every man in the United States, the avowed object of the law was the protection of commerce, and the avoiding of war. By its friends and its enemies, it was treated as a commercial, not as a war, measure. The persevering earnestness and zeal with which it was opposed in a part of our country which supposed its interests to be vitally affected by the act, cannot be forgotten. A want of acuteness in discovering objections to a measure to which they felt the most deep-rooted hostility will not be imputed to those who were arrayed in opposition to this. Yet they never suspected that navigation was no branch of trade, and was therefore not comprehended in the power to regulate commerce. They did, indeed, contest the constitutionality of the act, but, on a principle which admits the construction for which the appellant contends. They denied that the particular law in question was made in pursuance of the Constitution not because the power could not act directly on vessels, but because a perpetual embargo was the annihilation, and not the regulation, of commerce. In terms, they admitted the applicability of the words used in the Constitution to vessels, and that in a case which produced a degree and an extent of excitement calculated to draw forth every principle on which legitimate resistance could be sustained. No example could more strongly illustrate the universal understanding of the American people on this subject.

The word used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning, and a power to regulate navigation 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 Indian tribes.”

It has, we believe, been universally admitted that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort 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 in the 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, unless there 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 others is 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 between different 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 would probably 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 particular classes 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. The enumeration presupposes something not enumerated, and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce 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 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 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 useless power 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 to participate 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 means of 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 foreign voyage 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 a mathematical 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? Can a trading expedition between two adjoining States, commence and terminate outside of each? And if the trading intercourse be between two States remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the States must, of necessity, be commerce with the States. In the regulation of trade with the Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a State. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States. The sense of the nation on this subject is unequivocally manifested by the provisions made in the laws for transporting goods by land between Baltimore and Providence, between New York and Philadelphia, and between Philadelphia and Baltimore.

We are now arrived at the inquiry — What is this power?

It is the power to regulate, that is, 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. 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. 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 its abuse. They are the restraints on which the people must often rely solely, in all representative governments.

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 and act upon the very waters to which the prohibition now under consideration applies.

[The Court now turns to the argument that the States may exercise the same power concurrently with Congress — the ground on which the New-York acts were defended below. Marshall rehearses the respondent’s reliance on the tenth amendment and on the analogy of the taxing power, and answers that the analogy fails: taxation is by its nature capable of residing in, and being exercised by, different authorities at the same time, whereas a State that regulates commerce with foreign nations or among the several States is exercising the very power granted to Congress and doing the very thing Congress is authorized to do. He then works through the restrictions of the tenth section — duties on imports and exports, and duties of tonnage — and concludes that they are exceptions from the acknowledged taxing power of the States, not from the questionable power to regulate commerce. Whether the grant of the commerce power is by its nature exclusive of state authority is the seed of the doctrine this course reaches in Module 7A, the Dormant Commerce Clause. Marshall conspicuously declines to decide it; Johnson, J., whose concurrence follows, decides it.]

[A long digression follows on the laws the States plainly do pass which touch commerce — inspection laws, quarantine laws, health laws of every description, and laws respecting turnpike roads and ferries. Marshall answers that these belong to the immense mass of legislation embracing everything within the territory of a State not surrendered to the General Government, and that the same measure may flow from distinct powers without proving the powers identical. He disposes in the same way of the acts of Congress of 1796 and 1799 directing federal officers to aid in executing state quarantine and health laws, of the act of 1803 respecting the importation of slaves, of the pilotage act of August 7, 1789, and of the argument from lighthouses. None of them, he holds, shows an opinion in Congress that the States possess the commerce power concurrently. He then returns to the appellant’s contrary contention.]

It has been contended by the counsel for the appellant that, as the word “to regulate” implies in its nature full power over the thing to be regulated, it excludes necessarily the action of all others that would perform the same operation on the same thing. That regulation is designed for the entire result, applying to those parts which remain as they were, as well as to those which are altered. It produces a uniform whole which is as much disturbed and deranged by changing what the regulating power designs to leave untouched as that on which it has operated.

There is great force in this argument, and the Court is not satisfied that it has been refuted.

Since, however, in exercising the power of regulating their own purely internal affairs, whether of trading or police, the States may sometimes enact laws the validity of which depends on their interfering with, and being contrary to, an act of Congress passed in pursuance of the Constitution, the Court will enter upon the inquiry whether the laws of New York, as expounded by the highest tribunal of that State, have, in their application to this case, come into collision with an act of Congress and deprived a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent power “to regulate commerce with foreign nations and among the several States” or in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of Congress, and the decision sustaining the privilege they confer against a right given by a law of the Union must be erroneous.

This opinion has been frequently expressed in this Court, and is founded as well on the nature of the government as on the words of the Constitution. In argument, however, it has been contended that, if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject and each other like equal opposing powers.

But the framers of our Constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to, the laws of Congress made in pursuance of the Constitution or some treaty made under the authority of the United States. In every such case, the act of Congress or the treaty is supreme, and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.

In pursuing this inquiry at the bar, it has been said that the Constitution does not confer the right of intercourse between State and State. That right derives its source from those laws whose authority is acknowledged by civilized man throughout the world. This is true. The Constitution found it an existing right, and gave to Congress the power to regulate it. In the exercise of this power, Congress has passed “an act for enrolling or licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same.” The counsel for the respondent contend that this act does not give the right to sail from port to port, but confines itself to regulating a preexisting right so far only as to confer certain privileges on enrolled and licensed vessels in its exercise.

It will at once occur that, when a Legislature attaches certain privileges and exemptions to the exercise of a right over which its control is absolute, the law must imply a power to exercise the right. The privileges are gone if the right itself be annihilated. It would be contrary to all reason, and to the course of human affairs, to say that a State is unable to strip a vessel of the particular privileges attendant on the exercise of a right, and yet may annul the right itself; that the State of New York cannot prevent an enrolled and licensed vessel, proceeding from Elizabethtown, in New Jersey, to New York, from enjoying, in her course, and on her entrance into port, all the privileges conferred by the act of Congress, but can shut her up in her own port, and prohibit altogether her entering the waters and ports of another State. To the Court, it seems very clear that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies unequivocally an authority to licensed vessels to carry on the coasting trade.

[The opinion then walks section by section through the act of 1793 — the first section, declaring which vessels shall be deemed ships of the United States entitled to the privileges of the coasting trade; the fourth, directing the proper officer to grant a license for carrying on that trade and prescribing its form; and the words of the license issued to the Bellona itself. The reasoning is statutory rather than constitutional and is omitted; the conclusion Marshall draws from it follows.]

The word “license” means permission or authority, and a license to do any particular thing is a permission or authority to do that thing, and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license.

Would the validity or effect of such an instrument be questioned by the respondent, if executed by persons claiming regularly under the laws of New York?

The license must be understood to be what it purports to be, a legislative authority to the steamboat Bellona “to be employed in carrying on the coasting trade, for one year from this date.”

[Marshall disposes of the objection that the license names no ports, the coasting trade being a term the law has defined and all know the meaning of, and a voyage from New-Jersey to New-York being plainly one of its operations.]

Notwithstanding the decided language of the license, it has also been maintained that it gives no right to trade, and that its sole purpose is to confer the American character.

The answer given to this argument that the American character is conferred by the enrollment, and not by the license, is, we think, founded too clearly in the words of the law to require the support of any additional observations. The enrollment of vessels designed for the coasting trade corresponds precisely with the registration of vessels designed for the foreign trade, and requires every circumstance which can constitute the American character. The license can be granted only to vessels already enrolled, if they be of the burthen of twenty tons and upwards, and requires no circumstance essential to the American character. The object of the license, then, cannot be to ascertain the character of the vessel, but to do what it professes to do — that is, to give permission to a vessel already proved by her enrollment to be American, to carry on the coasting trade.

But if the license be a permit to carry on the coasting trade, the respondent denies that these boats were engaged in that trade, or that the decree under consideration has restrained them from prosecuting it. The boats of the appellant were, we are told, employed in the transportation of passengers, and this is no part of that commerce which Congress may regulate.

If, as our whole course of legislation on this subject shows, the power of Congress has been universally understood in America to comprehend navigation, it is a very persuasive, if not a conclusive, argument to prove that the construction is correct, and if it be correct, no clear distinction is perceived between the power to regulate vessels employed in transporting men for hire and property for hire. The subject is transferred to Congress, and no exception to the grant can be admitted which is not proved by the words or the nature of the thing. A coasting vessel employed in the transportation of passengers is as much a portion of the American marine as one employed in the transportation of a cargo, and no reason is perceived why such vessel should be withdrawn from the regulating power of that government which has been thought best fitted for the purpose generally. The provisions of the law respecting native seamen and respecting ownership are as applicable to vessels carrying men as to vessels carrying manufactures, and no reason is perceived why the power over the subject should not be placed in the same hands. The argument urged at the bar rests on the foundation that the power of Congress does not extend to navigation as a branch of commerce, and can only be applied to that subject incidentally and occasionally. But if that foundation be removed, we must show some plain, intelligible distinction, supported by the Constitution or by reason, for discriminating between the power of Congress over vessels employed in navigating the same seas. We can perceive no such distinction.

[There follows a good deal of further statutory and record detail: the section restraining Congress from prohibiting migration or importation before 1808, which classes migration with importation and so treats passengers as within the power; the duty act; the passenger-ship act of March 2, 1819; and the state of this record, which shows that the New-York acts take no notice of the employment of vessels at all but only of the principle by which they are propelled, and that Ogden’s bill complained not that the Bellona and the Stoudinger carried passengers but that they were moved by steam.]

The questions, then, whether the conveyance of passengers be a part of the coasting trade and whether a vessel can be protected in that occupation by a coasting license are not, and cannot be, raised in this case. The real and sole question seems to be whether a steam machine in actual use deprives a vessel of the privileges conferred by a license.

In considering this question, the first idea which presents itself is that the laws of Congress for the regulation of commerce do not look to the principle by which vessels are moved. That subject is left entirely to individual discretion, and, in that vast and complex system of legislative enactment concerning it, which embraces everything that the Legislature thought it necessary to notice, there is not, we believe, one word respecting the peculiar principle by which vessels are propelled through the water, except what may be found in a single act granting a particular privilege to steamboats. With this exception, every act, either prescribing duties or granting privileges, applies to every vessel, whether navigated by the instrumentality of wind or fire, of sails or machinery. The whole weight of proof, then, is thrown upon him who would introduce a distinction to which the words of the law give no countenance.

[A short passage on whether steam boats are in fact employed chiefly in carrying passengers is omitted; Marshall observes that on our western waters their principal employment is the transportation of merchandise.]

But all inquiry into this subject seems to the Court to be put completely at rest by the act already mentioned, entitled, “An act for the enrolling and licensing of steamboats.”

This act authorizes a steamboat employed, or intended to be employed, only in a river or bay of the United States, owned wholly or in part by an alien, resident within the United States, to be enrolled and licensed as if the same belonged to a citizen of the United States.

This act demonstrates the opinion of Congress that steamboats may be enrolled and licensed, in common with vessels using sails. They are, of course, entitled to the same privileges, and can no more be restrained from navigating waters and entering ports which are free to such vessels than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other for every commercial purpose authorized by the laws of the Union, and the act of a State inhibiting the use of either to any vessel having a license under the act of Congress comes, we think, in direct collision with that act.

As this decides the cause, it is unnecessary to enter in an examination of that part of the Constitution which empowers Congress to promote the progress of science and the useful arts.

The Court is aware that, in stating the train of reasoning by which we have been conducted to this result, much time has been consumed in the attempt to demonstrate propositions which may have been thought axioms. It is felt that the tediousness inseparable from the endeavour to prove that which is already clear is imputable to a considerable part of this opinion. But it was unavoidable. The conclusion to which we have come depends on a chain of principles which it was necessary to preserve unbroken, and although some of them were thought nearly self-evident, the magnitude of the question, the weight of character belonging to those from whose judgment we dissent, and the argument at the bar demanded that we should assume nothing.

Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass and that the original powers of the States are retained if any possible construction will retain them may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and when sustained, to make them the tests of the arguments to be examined.

[The decree follows. In the reporter it is printed at the close of the case, after Justice Johnson’s concurrence, and not at the end of the Chief Justice’s opinion.]

DECREE. This cause came on to be heard on the transcript of the record of the Court for the Trial of Impeachments and Correction of Errors of the State of New York, and was argued by counsel. On consideration whereof, this Court is of opinion that the several licenses to the steamboats the Stoudinger and the Bellona to carry on the coasting trade, which are set up by the appellant Thomas Gibbons in his answer to the bill of the respondent, Aaron Ogden, filed in the Court of Chancery for the State of New York, which were granted under an act of Congress, passed in pursuance of the Constitution of the United States, gave full authority to those vessels to navigate the waters of the United States, by steam or otherwise, for the purpose of carrying on the coasting trade, any law of the State of New York to the contrary notwithstanding, and that so much of the several laws of the State of New York as prohibits vessels, licensed according to the laws of the United States, from navigating the waters of the State of New York by means of fire or steam is repugnant to the said Constitution, and void. This Court is therefore of opinion that the decree of the Court of New York for the Trial of Impeachments and the Correction of Errors affirming the decree of the Chancellor of that State, which perpetually enjoins the said Thomas Gibbons, the appellant, from navigating the waters of the State of New York with the steamboats the Stoudinger and the Bellona by steam or fire, is erroneous, and ought to be reversed and annulled. And this Court doth further order, adjudge, and decree that the bill of the said Aaron Ogden be dismissed, and the same is hereby dismissed accordingly.

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[Justice Johnson concurred in the judgment on grounds of his own. Most of his opinion is omitted: the history of commercial jealousy under the Confederation which he offers as the cause of the Convention, his reading of the enrolment and licensing act — which he would call an exemption rather than a license, and on which he declines to rest the appellant’s right at all — and his answers to the appellee’s objections. What follows is his account of constitutional construction, which should be read directly against the Chief Justice’s; his reason for holding the commerce power exclusive of the States; and his view of navigation. It is Johnson, not Marshall, who supplies this course with its first statement of the exclusivity argument.]

The judgment entered by the Court in this cause, has my entire approbation, but, having adopted my conclusions on views of the subject materially different from those of my brethren, I feel it incumbent on me to exhibit those views. I have also another inducement: in questions of great importance and great delicacy, I feel my duty to the public best discharged by an effort to maintain my opinions in my own way.

In attempts to construe the Constitution, I have never found much benefit resulting from the inquiry whether the whole or any part of it is to be construed strictly or literally. The simple, classical, precise, yet comprehensive language in which it is couched leaves, at most, but very little latitude for construction, and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it in the best manner to effect the purposes intended. The great and paramount purpose was to unite this mass of wealth and power, for the protection of the humblest individual, his rights, civil and political, his interests and prosperity, are the sole end; the rest are nothing but the means. But the principal of those means, one so essential as to approach nearer the characteristics of an end, was the independence and harmony of the States that they may the better subserve the purposes of cherishing and protecting the respective families of this great republic.

[Johnson then traces the commercial rivalries which led to the Convention — the five percent. duty, Dr. Witherspoon’s resolution of 1781, the Virginia resolution of January 21, 1781, and Mr. Madison’s preamble — and concludes that the grant of power over commerce could be only commensurate with the power of the States over the subject. He turns to the words of the grant, and rejects as mere verbal criticism the question whether the article a or the should be prefixed to the word “power.”]

My opinion is founded on the application of the words of the grant to the subject of it.

The “power to regulate commerce” here meant to be granted was that power to regulate commerce which previously existed in the States. But what was that power? The States were unquestionably supreme, and each possessed that power over commerce which is acknowledged to reside in every sovereign State. The definition and limits of that power are to be sought among the features of international law, and, as it was not only admitted but insisted on by both parties in argument that, “unaffected by a state of war, by treaties, or by municipal regulations, all commerce among independent States was legitimate,” there is no necessity to appeal to the oracles of the jus commune for the correctness of that doctrine. The law of nations, regarding man as a social animal, pronounces all commerce legitimate in a state of peace until prohibited by positive law. The power of a sovereign state over commerce therefore amounts to nothing more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive; it can reside but in one potentate, and hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon.

And such has been the practical construction of the act. Were every law on the subject of commerce repealed tomorrow, all commerce would be lawful, and, in practice, merchants never inquire what is permitted, but what is forbidden commerce. Of all the endless variety of branches of foreign commerce now carried on to every quarter of the world, I know of no one that is permitted by act of Congress any otherwise than by not being forbidden. No statute of the United States that I know of was ever passed to permit a commerce unless in consequence of its having been prohibited by some previous statute.

[He puts aside the treaty-making power, and then reaches the same conclusion by a second route: the power over foreign commerce is necessarily exclusive, the States being unknown to foreign nations and the General Government answerable for whatever regulations foreign commerce meets in the ports of the Union.]

But the language which grants the power as to one description of commerce grants it as to all, and, in fact, if ever the exercise of a right or acquiescence in a construction could be inferred from contemporaneous and continued assent, it is that of the exclusive effect of this grant.

A right over the subject has never been pretended to in any instance except as incidental to the exercise of some other unquestionable power.

The present is an instance of the assertion of that kind, as incidental to a municipal power; that of superintending the internal concerns of a State, and particularly of extending protection and patronage, in the shape of a monopoly, to genius and enterprise.

The grant to Livingston and Fulton interferes with the freedom of intercourse, and on this principle, its constitutionality is contested.

When speaking of the power of Congress over navigation, I do not regard it as a power incidental to that of regulating commerce; I consider it as the thing itself, inseparable from it as vital motion is from vital existence.

Commerce, in its simplest signification, means an exchange of goods, but in the advancement of society, labour, transportation, intelligence, care, and various mediums of exchange become commodities, and enter into commerce, the subject, the vehicle, the agent, and their various operations become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen are such vital agents of commercial prosperity that the nation which could not legislate over these subjects would not possess power to regulate commerce.

[He finds the same understanding in the first and fifth clauses of the ninth section of the first article.]

But it is almost labouring to prove a self-evident proposition, since the sense of mankind, the practice of the world, the contemporaneous assumption and continued exercise of the power, and universal acquiescence, have so clearly established the right of Congress over navigation, and the transportation of both men and their goods, as not only incidental to, but actually of the essence of, the power to regulate commerce. As to the transportation of passengers, and passengers in a steamboat, I consider it as having been solemnly recognised by the State of New York as a subject both of commercial regulation and of revenue. She has imposed a transit duty upon steamboat passengers arriving at Albany, and unless this be done in the exercise of her control over personal intercourse, as incident to internal commerce, I know not on what principle the individual has been subjected to this tax. The subsequent imposition upon the steamboat itself appears to be but a commutation, and operates as an indirect, instead of a direct, tax upon the same subject. The passenger pays it at last.

[The remainder of the concurrence is omitted: Johnson’s treatment of the coasting license, his answers to the objections drawn from the unavoidable action of the municipal powers of the States upon commercial subjects and from the passages of the tenth section supposed to imply a concurrent power, and his observations on the collision that must sometimes arise between the two governments and on the frank and candid cooperation which has hitherto been the only remedy. He closes:]

I have not touched upon the right of the States to grant patents for inventions or improvements generally, because it does not necessarily arise in this cause. It is enough for all the purposes of this decision if they cannot exercise it so as to restrain a free intercourse among the States.

Notes & Questions

1. Big picture. This is the first reading of the module and the widest statement of the commerce power in the United States Reports, and the two facts are related: everything that follows in the next two hundred years is an argument about how much of Gibbons is still true. Read it for the four questions the course will keep returning to, because Marshall answers all four here. What is it to “regulate”? What is “commerce” — one stage of a business, or all of it? What does “among the several States” mean — and does it stop at a state line? And does the Tenth Amendment limit Congress at all? Notice that Marshall answers the second question by refusing to let a general word be narrowed to one of its meanings, which is precisely the move he made five years earlier in McCulloch v. Maryland about the word “necessary.” It is the same judge doing the same thing with a different word, and you should be able to say so out loud. Then notice what he does not do. He does not say the power is unlimited: the completely internal commerce of a State is reserved to the State, and “the enumeration presupposes something not enumerated.” That sentence sits quietly here in 1824 and detonates in 1995, when Lopez quotes it back.

2. Raw specific knowledge — the four answers, in his words. Write out, quoting the opinion, Marshall’s answer to each of the four framing questions. For “regulate,” you want the definition — to prescribe the rule by which commerce is to be governed — and you should notice it is a definition of a verb, which is exactly the ground on which the Chief Justice will fight in NFIB when he says the power to regulate presupposes something already there to regulate. For “commerce,” you want traffic-but-something-more and the reason navigation is included. For “among,” you want intermingled-with, the external-boundary-line sentence, and the reservation of completely internal commerce. For the Tenth Amendment question, you want the plenary passage and — this is the part students skip — the sentence naming what the restraints actually are: the wisdom and discretion of Congress, their identity with the people, and the influence their constituents possess at elections. That is a holding that the check on the commerce power is political rather than judicial. Mark it. Two centuries of doctrine consist of the Court deciding how much it meant it.

3. Practical application — the strict-construction argument, made and answered. Marshall does something rhetorically unusual: he states his opponent’s rule of construction, asks what warrant the Constitution gives for it, and finds none. (a) Reconstruct counsel’s argument for strict construction as strongly as you can, without using the word “federalism” — you have to argue from text and structure, because that is the register Marshall is answering in. (b) Now identify the distinction Marshall concedes. He does not say words should be read expansively; he separates an enlarged construction, which extends words beyond their natural import, from a narrow construction, which would cripple the government. Where exactly is the line between “natural import” and “enlarged”? Can you state a test, or is this just an assertion that his reading is the natural one? (c) Apply the distinction to a modern statute: Congress regulates something you think is a stretch. Are you arguing the words have been enlarged beyond their natural import, or that the subject feels local? Those are different arguments and only one of them is Marshall’s.

4. Attack the reasoning — the restraints are political. Take the sole-restraints passage seriously as a proposition of constitutional law rather than as a flourish. (a) If the wisdom of Congress and the influence of constituents at elections are the restraints, what is left for a court to do when Congress exceeds the commerce power? Is Marshall saying there is no judicially enforceable limit, or only that there was none on these facts? Defend both readings from the text. (b) The completely-internal-commerce reservation cuts the other way: it names something Congress cannot reach. Is that a judicially enforceable limit or a definitional one — and is there a difference? (c) Lopez will hold, seventy years after the New Deal, that the power “though broad indeed, has limits” that a court may enforce. Is Lopez consistent with this opinion, in tension with it, or a correction of it? Be prepared to defend your answer against someone who has read the same sentences. (d) Consider the institutional posture. Marshall is deciding a case about a steamboat monopoly against the highest court of New York, in a period when the reach of federal power was genuinely contested. Does knowing that make the opinion more persuasive or less?

5. Creative thinking — the road not taken, and where it goes. Justice Johnson concurs in the judgment and gets there another way: he thinks the grant of the commerce power is exclusive from the nature of the power — that is, the States never had it to begin with, so no collision with an act of Congress is needed to invalidate the New York statutes. Marshall does not go there. He decides on collision and supremacy, leaving the exclusivity question open. (a) State the practical difference between the two routes. Construct a case that comes out one way on Johnson’s theory and the other way on Marshall’s. (b) Marshall’s choice leaves a question the Court must answer later: may a State regulate commerce among the States when Congress has said nothing at all? That question becomes the Dormant Commerce Clause, and this course reaches it in Module 7A. When you get there, come back to this page and ask whether the doctrine you find is Johnson’s theory arriving late. (c) Finally, an exercise in reading forward. Two sentences from this opinion get quoted back at the federal government by later Courts: the enumeration-presupposes sentence, in Lopez, and the definition of the power to regulate, in NFIB. Find both. Then ask the harder question — is a later Court that quotes Marshall against Congress using him, or turning him?