Tuesday, September 11, 2018

The Thinking Behind Gibbons v. Ogden

Gerard N. Magliocca

Last year, I posted here that I found Justice Bushrod Washington's original notes on Corfield v. Coryell. They are in a journal held by the Chicago History Museum. I am now writing a paper on Corfield and these notes, and in the course of that research I have uncovered a clue for understanding how the Supreme Court decided Gibbons v. Ogden. 

Gibbons is one of the most famous Supreme Court cases and is taught to virtually every law student. New York granted a monopoly on steamboat traffic in that state's waters to Robert Fulton and Robert Livingston. In an opinion by Chief Justice Marshall, the Court held that the state law ran afoul of an Act of Congress (in essence, that there was federal preemption). The Chief Justice also (as was his style) offered up a lot of influential dicta on the Commerce Clause and the powers granted by that provision to Congress. An important point in that dicta was that the Commerce Clause did not vest exclusive authority in Congress. The authority was instead concurrent. States were free to legislate on  topics that indirectly affected interstate commerce in the absence of congressional legislation. (Later the Court developed the Dormant Commerce Clause to establish limits on that state regulation.)

A basic problem in studying the Marshall Court is that we know little about how its decisions were made. Most of the opinions in that era were written by the Chief Justice, and he gets the lion's share of the credit for them. But is that an accurate assessment? Given that most of his opinions were for a unanimous Court, there must have been input from the other Justices into the final product. There are, though, no internal memos that survive from these cases, largely because there probably were no such memos in the first place. The Justices worked and lived together and communicated orally.

In the Corfield notes, though, there is a smoking gun that relates directly to Gibbons. Corfield raised a  Commerce Clause question; namely, could New Jersey regulate the harvesting of oysters in navigable waters or did that authority rest with Congress? Justice Washington first considered this issue before Gibbons was decided. And his notes discuss at some length a veto issued by Governor Oliver Wolcott of Connecticut of a law that would have retaliated against the New York steamboat monopoly by not allowing the New York monopoly to operate in Connecticut. In that veto, Walcott contended that the New York law was unconstitutional and explained that this conclusion was sound either because the commerce power was vested exclusively in Congress or because the power was concurrent and the state statute was inconsistent with federal legislation. Washington made notes on both points.

What does this tell us about Gibbons? The answer is that we now know that one Justice on the Court was thinking about the Commerce Clause problem addressed by Gibbons before that case reached the Court--Bushrod Washington. We also know that the source he found the most useful contained part of the analysis that the Court ultimately adopted. Thus, there is circumstantial evidence that Marshall's opinion drew on Governor Wolcott's veto and Justice Washington's research for Corfield. Perhaps we should start thinking about the Marshall Court, like the Warren Court, as a collaborative effort.


"Perhaps we should start thinking about the Marshall Court, like the Warren Court, as a collaborative effort."

I have read some on John Marshall, including one or more biographies, and do recall reference to how Marshall's opinions of the courts were at times compromises. Him writing and announcing a judgement did not necessarily mean that -- given his druthers -- he would have did things that way. Avoiding dissent -- which which harder in the last portion of his term (he himself dissented in a major constitutional case involving bankruptcies) -- in part was a "collaborative effort."

This is useful to note when thinking about how multi-member courts operate.

The "collaborative effort" principle also can help give some mostly forgotten justices some time in the sun. More minor justices had skills in certain areas of law.


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