          Gibbons v. Ogden, 22 U.S. 1 (1824)

              Commentary by Jon Roland

The opinion in this case is one of the more pernicious in Supreme Court 
jurisprudence. The decree is essentially correct, but the reasoning leading 
to it is erroneous. In fairness, there are also problems with the way the 
Constitution is worded, which lay the basis for this misconstruction. 
However, by examining the evidence of the original understanding of the 
Founders, we can arrive at a better one.

What Marshall does in this opinion is reach for the conclusion that the 
national Congress has the exclusive power to regulate navigation in the 
coastal waters of the United States, and tries to find the authority for 
that power in the Commerce Clause, but does it in a way that lays the basis 
for other, broader constructions of the Commerce Clause.

To answer Marshall, it must be agreed that the United States needs the power 
to regulate navigation in its coastal waters, but does any clause of the 
Constitution delegate that power, or did the Framers neglect to include it? 
Is navigation "commerce"? If so, then one can conclude that the power rests 
on the Commerce Clause, but if "commerce" does not include navigation, then 
what is the basis for the power, if any?

The correct answer is that the United States does have a limited power to 
regulate or prohibit navigation in its coastal waters, but that such power 
derives from its power of defense, not from the Commerce Clause. Marshall 
alludes to this argument, calling it the "war-making" power, but the 
Constitution delegates the power to collect taxes to "provide for the common 
Defense", and it was understood that, while part of a restrictive clause 
concerning spending, it referred to a power to defend the nation, and that 
such defense can involve doing more than just making war or preparing for 
it. The power to defend implies the power to regulate or prohibit navigation 
in coastal waters or the movement of persons across national borders.

Part of the problem with this case is that both parties opened the way to 
the misconstruction by allowing that the power to regulate interstate 
commerce included the power to regulate interstate traffic. Ogden at least 
should have argued a narrower definition of "commerce".

So how did the Founders understand "commerce" for purposes of the 
Constitution? First, it is clear from the examples cited in their debates 
that they only contemplated commodities, not services. We also find in the 
writings of legal scholars of the time the repeated use of phrases like 
"commerce and traffic" or "commerce and navigation" to show they meant 
distinct things by the two terms. They clearly contemplated commodities 
being traded across state lines being inspected at checkpoints, probably but 
not necessarily on the borders, for compliance with regulations, and perhaps 
for the assessment of taxes. On the other hand, they also clearly did not 
intend to include personal property being carried across a border for one's 
own personal use and not for trade. Therefore, an essential element of the 
definition of "commerce" was the sale of a commodity or the right to use it.

To further refine the definition, we must examine where the sale takes 
place. Clearly, for the Founders it was interstate "commerce" if the owner 
carried a commodity across a state border for sale to someone in another 
state than the state of his origin, so sale in the terminating state would 
make it "commerce". What about sale in the originating state? If the buyer 
took delivery in the originating state, then carried it back to his own 
state, not intending to sell it to someone else in his state, it would be 
his personal property, and not interstate "commerce", but intrastate, and 
outside the jurisdiction of Congress. Suppose the sale took place in the 
originating state, but the buyer did not take delivery there, but had it 
shipped to him in his own terminating state? Again, the Founders would have 
included that situation within their meaning of interstate "commerce". From 
these considerations, we can arrive at a definition: Constitutional 
"commerce" is the sale of a commodity from a seller in one state to a buyer 
in another state together with the delivery of that commodity from the 
seller in the originating state to the buyer in the terminating state.

So where does "traffic" enter the discussion? Clearly, the delivery of a 
purchased commodity is traffic, but so is transport of personal property not 
involved in a sale, and the latter is not "commerce" as defined above. 
Therefore, some traffic is "commerce" and some is not. Does this make 
"traffic" subject to regulation under the Commerce Clause, as an implied 
power? After all, both kinds of traffic share the same roads and navigable 
waters. The correct answer is, only to the extent necessary to separate 
commercial traffic, subject to regulation of the commodity, from 
noncommercial traffic. This means all traffic may be routed through 
inspection checkpoints, to determine whether the cargo is commercial or not, 
but once the cargo is determined not to be commercial, the power ends, and 
is only revived if the traveler or vessel has the opportunity to pick up 
additional cargo that might be subject to regulation.

What Marshall does when he says "the sovereignty of Congress, though limited 
to specified objects, is plenary as to those objects" is commit a non 
sequitur when he argues that if a second object, such as interstate traffic 
or navigation, is sometimes included within a delegated object, such as the 
interstate sale of commodities, therefore it is always included and power is 
also plenary over that object. First, the delegations are for subjects, that 
is, classes of things or activities, not objects, which connotes purpose. 
Second, the delegations are not necessarily plenary, although they may be 
exclusive. The power to regulate is not the power to prohibit. It is 
essentially not plenary, because it is not the power to prohibit all 
modalities of a thing, but only of some modalities, leaving some remaining, 
and then only minimally for a reasonable public purpose. Unreasonable or 
excessive regulation would be beyond the delegation, and justiciable on 
constitutional grounds.

Leaving aside coastal waters, what about traffic and navigation between 
states? Do states have the power to regulate it? When questioned about it, 
James Madison stated that the intent of the Commerce Clause was not so much 
to grant the power to regulate commerce to the national government as to 
remove it from the states. We can accept that statement as authoritative, 
but that is not what is stated in the Constitution. For that intent the 
Framers should have included a clause in Art. I Sec. 10 prohibiting the 
states from impairing traffic or navigation, or regulating commerce, with 
another state or a foreign nation. They didn't. Can we infer such a 
prohibition from the Commerce Clause? Logically, we cannot. We can argue 
that if the states had plenary power to impair interstate traffic or 
navigation, and if the delegation of power to regulate commerce to Congress 
is exclusive, then the exercise of their power by the states would conflict 
with the power of Congress, and therefore must yield to regulations of 
commerce passed by Congress, but in the absence of such regulation, they 
could exercise such power. In this case, while there was a conflicting 
national navigation law, there was no conflicting national commerce 
regulation law.

All we can do to forbid the states from impairing traffic or navigation, or 
the regulation of commerce, with other states or nations, is rely on the 
statement by Madison and perhaps other Framers as to their intent. Such a 
construction is extraconstitutional, based not even on legislative history 
but on later commentary by the lawmakers. The Supreme Court may reasonably 
base a decision on such commentary, but it should also declare that such 
decision is made as a matter of equity, and not to be considered a 
constitutional precedent, and recommend that the defect in the Constitution 
be corrected at the earliest date by amendment.

However, there are two other matters that need to be discussed. The first is 
whether the coastal waters of a state are within the territorial 
jurisdiction of the state or the nation. The Constitution is silent on this 
issue, as are the ratification resolutions of the states that had coastal 
waters. Originally, the coastal waters of each state were part of their 
territories. How did the nation get jurisdiction? Were there cessions of the 
coastal waters to the exclusive jurisdiction of Congress under Art. I Sec. 8 
Cl. 17? There could have been, but there weren't. It has been left to the 
federal courts, and except for the Texas tidelands, the decision was that 
the territory of coastal waters belongs to the nation. Such a position is 
rational policy, but without legal foundation. It could be resolved by the 
coastal states ceding the territory, and they should, but so far most of 
them haven't.

Clearly, if the coastal waters of a state are within the national 
jurisdiction, then the state would not have jurisdiction to license 
navigation in such waters. That is not the decision in this case, which 
could be reasonably interpreted as an implied holding that the coastal 
waters of a state are within that state's territorial jurisdiction.

The second matter concerns the Intellectual Property Clause. Marshall 
mentions it as an argument of the appellant, but dismisses it, and errs in 
doing so. The apparent purpose of the license by the State of New York in 
this case was to protect the rights of the heir or assign of the inventor of 
the steamboat, who was Ogden, to operate steamboats, and therefore was the 
exercise of a kind of intellectual property right protection. That raises 
the question of whether states may grant patent, trademark, or copyright 
protection, or whether the delegation of such power to Congress is 
exclusive. Clearly, the states do grant name protection to corporations when 
they charter them, and authorize the filing of assumed names, which is akin 
to trademark protection. But could a state extend patent protection within 
its territory beyond the expiration of that protection at the federal level, 
and what happens when a party, free to market the invention in most states 
after the expiration of the federal patent, is prohibited from doing so 
within the state that extended the patent? The answer is unclear, because a 
few states do have their own intellectual property protective laws, mostly 
involving the theft of trade secrets, but potentially in conflict with 
federal protective laws.

Therefore, the way this case should have been decided would have been to 
find that Gibbons had the right to use the invention of the steamboats in 
the absence of a federal patent being held by Ogden, and that the license 
from the State of New York impaired commerce between states if the 
steamboats carried any commercial cargo, so for such operations, was 
invalid. Then as long as each steamboat carried at least one commodity being 
sold across a state line, it would be exempt from being prohibited by the 
State of New York. It could have also held that the Congress has the prior 
power to regulate or prohibit navigation in coastal waters under the Defense 
Clause. The carrying of passengers, being a service, would not be commerce, 
and irrelevant to the case. 




