The interbellum constitu.., p.20
The Interbellum Constitution, page 20
(1) federal power over commerce among the states was exclusive, and states could not regulate any activity that amounted to commerce, even in the absence of federal regulation (the strong exclusive-power view);
(2) federal power over commerce among the states was supreme but not necessarily exclusive, and states could not regulate any activity that amounted to commerce if such regulation conflicted with actual federal regulation (the collision view);
(3) federal power over commerce among the states was exclusive, but states could regulate other types of commercial activity under their police powers (the police-power view);
(4) federal power over commerce among the states was neither exclusive nor supreme, and states were free to regulate interstate commerce as well (the concurrent-power view).
The first approach, the strong exclusive power view, formed the core of Webster’s argument. It was adopted by Johnson in his concurring opinion. Webster began by reminding his audience that Connecticut and New Jersey had passed legislation retaliating against New York’s monopoly grant to Livingston and Fulton. Under the terms of the New York grant, a steamboat that traveled between Elizabethtown and New York without a license from Livingston and Fulton was susceptible to forfeiture to Livingston and Fulton’s representatives. New Jersey, in response, had created a cause of action for costs and treble damages that could be brought by New Jersey plaintiffs against representatives of Livingston and Fulton who attempted to carry out the forfeiture provision against that New Jersey citizen. Connecticut, meanwhile, had passed a law prohibiting any vessel with a New York license from entering its waters.64
All these acts, Webster contended, were beyond the power of the state legislatures because they interfered with rights under the laws of the United States. As Henry Wheaton paraphrased the argument in the ninth volume of his reports, “He [Webster] should contend, that the power of Congress to regulate commerce, was complete and entire, and, to a certain extent, necessarily exclusive; that the acts in question were regulations of commerce, in a most important particular; and affecting it in those respects, in which it was under the exclusive authority of Congress.”65
Webster appeared to hedge on the scope of this exclusive power, stating this proposition “guardedly.” He did not intend to suggest that “all regulations, which might, in their operation, affect commerce, were exclusively in the power of Congress; but that such power as had been exercised in this case, did not remain with the States.”66 Nevertheless, Webster was making a bold statement. To establish a steamboat monopoly was to regulate commerce. The authority to regulate commerce was “complete and entire” in Congress. That authority extended to both “foreign and domestic trade.”67 Therefore, New York’s grant to Ogden of a monopoly was invalid.
At this point in his argument, Webster had not yet mentioned the federal coasting statute of 1793—the source of the putative conflict between state and federal law. Rather, in his conception, the power that New York had exercised in granting the monopoly was itself beyond New York’s capacity, regardless of Congress’s action. Even if Congress did not act to regulate commerce, the state had to stay out of that domain. Beginning with the New York law and assessing whether it was a valid exercise of the state’s powers, irrespective of federal action in the domain, was tantamount to an endorsement of the exclusive-power thesis. Indeed, a power could be held exclusively by Congress even if that exclusivity was neither explicit in Article I of the Constitution nor implied from a textual prohibition on the states. “Some powers are holden to be exclusive in Congress … from the nature of the powers themselves,” Webster maintained.68
When Webster confronted arguments for concurrent power over commerce—shared between the states and Congress—his belief in federal exclusivity became evident. The history and structure of the Constitution demonstrated that the commerce power had been “transfer[red] … from the several States to a general government.” The very nature of the power required exclusivity. From the founding onward, “the commerce of the States was to be an unit; and the system by which it was to exist and be governed, must necessarily be complete, entire, and uniform.”69 The commerce of the states was a “unit,” and so also was the power to regulate that commerce. The unitary power to oversee the unitary system lay entirely with the general government.
Moreover, attempts at concurrent power would end in “confusion” and “perpetual hostility.”70 Webster professed not even to understand what such an approach would mean: “[C]an more than one power, in cases of this sort, give the rule, establish the system, or exercise the control?” No, he answered. In an argument that hearkened back to late-eighteenth-century warnings against an imperium in imperio, or a government within a government, Webster in effect argued that multiple controlling powers could not exist within a single polity: “A power in the States to do any thing, and every thing, in regard to commerce, till Congress shall undo it, would suppose a state of things, at least as bad as that which existed before the present constitution. It is the true wisdom of these governments to keep their action as distinct as possible.”71
And what of the vast array of state acts that looked as though they regulated commerce—“pilot laws, the health laws, or quarantine laws”? Ogden’s lawyers cited these laws to support their contention that the commerce power was divided between the states and the federal government, Webster noted. If the domain of commerce was thus shared, then New York could validly regulate in that domain, and so it could issue the monopoly to Ogden.
But such arguments rested on a misapprehension of these laws, Webster insisted. Such acts were not properly deemed “commercial regulations.” This was not because they touched purely internal activity, as later doctrine might suggest. Webster was clear on this point: the difference was not where the regulation was aimed, or where its effects were felt, but the nature of the regulation itself. As Wheaton reported, “The truth was, he thought, that all these things were, in their general character, rather regulations of police than of commerce, in the constitutional understanding of that term.” For Webster, the universe of laws was divided into two categories: commerce and police. Acts governing “roads, and bridges, and ferries” clearly “affect commerce and intercourse,” but they lacked “that importance and elevation, as to be deemed commercial regulations.” So, too, with quarantine laws, which were “in their nature, health laws.”72 Laws that lacked importance and elevation, laws that were health laws: these were separate categories from the special realm of the Commerce of the Union. “Commerce” and “police” were separate boxes, not points on a spectrum.
At least as glossed by Wheaton, who generally reprinted the arguments from versions that the lawyers delivered to him afterward, Webster’s argument canvassed all four of the approaches to the relationship between federal and state regulation.73 The bulk of the argument hovered between the strong exclusive power view and the police power view. He briefly discussed the intermediate, collision-based approach.74 And he rejected the concurrent power approach altogether.
As when the steamboat case was before the state courts four years earlier, the issue of slavery surfaced in the lawyers’ arguments. Webster noted that in the New York proceedings, “no small reliance was placed on the law of that State prohibiting the importation of slaves, as an example of a commercial regulation, enacted by State authority.” The lawyers for Ogden had contended that if the state could ban the importation of slaves, which it had, then it clearly possessed the power to oversee commerce. (Their claim assumed that the trade in enslaved people was appropriately categorized as “commerce,” a premise to which the Supreme Court returned in the 1830s and 1840s, as later chapters will discuss.) Counsel for Gibbons had countered with a species of preemption argument. If Congress expressly authorized the slave trade, no single state would have the power to prohibit the importation of enslaved persons.75 What the states could and could not do in the realm of commerce depended at least in part on whether Congress had chosen to act in the same area.
Now, before the Supreme Court, Webster refrained from stating definitively on which side of the police-commerce line the steamboat monopoly fell. More significantly, Webster declined to state his view on the constitutionality of New York’s ban on the importation of enslaved people into the state. “That law may or may not be constitutional and valid,” he observed. “It has been referred to generally, but its particular provisions have not been stated. When they are more clearly seen, its character may be better determined.” Such was the extent of his comment.76
The statement was an odd one. Congress had not acted to authorize the interstate slave trade. Nor, to the regret of many, had it banned it. The issue of Congress’s power to ban the interstate slave trade was a recurrent and controversial one throughout the interbellum era.77 With his obscure statement, Webster appeared to go out of his way to raise doubts about the constitutionality of New York’s bar on the importation of slaves into the state. It was the opposite approach from that of Chief Justice Marshall in The Brig Wilson, when Marshall was confronted with Virginia’s ban on the migration of free Black people into that state. As Marshall had written to Story in September 1823, he might have addressed the Virginia law’s constitutionality, but “it was not absolutely necessary, &, as I am not fond of butting against a wall in sport, I escaped on the construction of the act.”78 Webster, in contrast, was openly, and unnecessarily, speculating from the well of the Court’s chamber about the constitutionality of a statute that was not even at issue in Gibbons.
But there was a difference between The Brig Wilson and Gibbons. While the result that Marshall reached in The Brig Wilson depended on the fact that the individuals who had debarked at Norfolk were specified in the record as “free persons of colour,” the hypotheticals being offered four years later in Gibbons concerned the movement of persons who were held in bondage. As a host of cases over the coming decades would illustrate, the movement of African American people across state lines increasingly implicated the supremacy of federal law. By 1850, if not before, Congress and the Court placed their power firmly behind enforcement of state regimes of slavery. This effort, manifested through case law as well as statutes, maintained the additive mode of federalism that informed The Brig Wilson. But the valence of the interlocking federal and state laws had shifted and solidified.
The Case for the New York Monopoly
In order for Ogden to prevail in his claim of a valid monopoly over steamboat travel in New York Harbor, he and his lawyers had both to rebut Webster’s exclusive-power theory and to fend off the argument that the state law collided with some valid federal law.
Both Oakley and Emmet resisted Webster’s characterization of concurrent power as impossible and undesirable. Oakley’s argument sounded themes of state sovereignty, citing the Tenth Amendment, which he interpreted to mean that in order for the national government to exercise a power, that power must be “expressly granted.”79 Oakley also focused on the distinction between commerce among the states and internal commerce, “that which is wholly carried on within the limits of a State.”80 Congress’s commerce power, he maintained, could not reach internal commerce, even if that activity had some effect on trade with other states. The vast powers of the state legislature, in contrast, compassed any trade, whether internal or external, including “turnpike roads, toll bridges, exclusive rights to run stage wagons, auction licenses, licenses to retailers, and to hawkers and pedlers [sic], ferries over navigable rivers and lakes, and all exclusive rights to carry goods and passengers, by land or water.” The New York monopoly was therefore valid, “considered either as a regulation of intercourse and trade among the several States, or as a regulation of the internal navigation of the State.”81
Oakley characterized his view as one based on concurrent power, but it might more accurately be seen as endorsing not shared authority but state authority. “The States no where derive any powers from the constitution,” Oakley maintained. “All its provisions are in restraint of their authority.” For Oakley, the Union was an entity limited in scope that did not disturb “the original inherent power of the State.”82 The federal system established in 1789 postdated this power, and its array of enumerated federal powers were therefore subordinate to it. As part of this original inherent power, a state might regulate commerce. There was, Oakley insisted, “no necessary repugnancy between the acts of the two governments under this power.” On the contrary, “a great variety of regulations” might “operate together, without direct interference.”83
Emmet’s argument in favor of the New York grant offered a more robust theory of concurrent power that was qualitatively different from Oakley’s reliance on the original inherent powers of the states. Emmet began with a precise definition:
The expression, concurrent powers, is objected to, as if it implied equality in the rights vested in Congress and the States. It is only a verbal criticism, that it would be more correct if the term used was co-ordinate. The term, concurrent, is adopted by the Federalist, and has constantly been used to express those powers. It is always understood, when so applied, that the exercise by the States must be subordinate, and never can be in collision with that by Congress.84
Absent such a collision, states were free to regulate navigation and trade within their borders, as well as non-commerce activities, such as transportation of passengers, that reached beyond the state. Moreover, Emmet expressed impatience with the justifications offered by Webster and others who supported exclusive federal power. He suggested that they were more poetical than legal: “[T]here is no grant in the constitution giving the navigable waters peculiarly to the Federal government, and not to the States within which they may be.” Nor, contra his opponents, could the power over navigation be “traced to any grant.” Rather, he noted satirically, it seemed to derive from “some mystical consequence of the Union itself.”85
Finally, Emmet offered what Oakley had not attempted: a discussion of how concurrent power might work in practice. Emmet acknowledged that such a system might be difficult to comprehend; no less an authority than Judge Tucker, in his Blackstone, had stated that the commerce power was “not susceptible of a concurrent exercise.”86 But Emmet thought otherwise, citing Kent’s opinion in Livingston v. Van Ingen for the proposition that concurrent power was “the only safe and practicable rule of conduct, and the true constitutional rule, arising from the federal system.”87
To be sure, Emmet admitted, the contours of shared power over commerce were difficult to define ex ante. But he offered examples. One was a proposal that Madison had made in 1785, prior to the Constitutional Convention. The plan would have granted states the power to ban imports of certain types of goods, but it would also have prohibited the states from imposing duties on imports. States would thus have been able to outlaw specific imports but not to tax imports generally. In this distinction, “it was clearly contemplated, that the individual States should at least retain the power of absolutely prohibiting the importation of any article they thought fit, within their own respective limits.” Moreover, Emmet contended, the Constitution had preserved this distinction: the states are “qualifiedly restrained from laying imposts or duties on exports or imports, but not from entirely prohibiting their exportation or importation.”88 That arrangement, he suggested, amounted to concurrent power in action: concurrent power still obtained in a system that permitted Congress to override the state’s prohibitory legislation, as long as the state law was “valid until Congress shall have made regulations inconsistent” with the state law.89
Indeed, Emmet argued, a canvass of state laws would reveal that “they have always exercised the power of making very material regulations respecting commerce.” In Emmet’s view, this “immense mass of State laws” were regulations of commerce, not exercise of police power. Here was another point on which Emmet’s view differed from Webster’s; indeed, as we have seen, Webster had temporized on this point with respect to slavery. If the power of Congress was determined to be exclusive, the necessary result would be “declaring to be unconstitutional, an appalling body of State legislation.”90
Chief among this immense mass of state laws that would be disrupted should the Court adopt exclusivity were “the laws respecting slaves.” Emmet cited state laws restricting trade in imported slaves dating back to the 1780s. He also pointed to Congress’s 1803 Act Preventing the Importation of Certain Persons into Certain States, at issue in The Brig Wilson, as evidence that Congress had long “recognised and acted on the power of the States to prohibit this trade.” Moreover, he contended, the 1803 act was based on Congress’s power over commerce—just as Tucker and Marshall had held in The Brig Wilson. Thus, Emmet argued, the Constitution contemplated that both Congress and the states would have power over the trade in enslaved human beings. The power was asymmetrical, however: Emmet noted that states were constitutionally permitted to legislate on the question “unless Congress should prohibit the trade.”91
Emmet’s theory of concurrent power was far more theoretically rich than Oakley’s vision of the Union as a compact of the states. It was also truly a theory of concurrent power, insofar as it allocated power over a single subject—commerce—to both Congress and the states. Both levels of government would share regulatory authority over commerce, and they would have to negotiate the scope of their respective zones. The division was not self-executing; one could not simply read Article I to understand where the lines of concurrence lay. Norms, practice, and judicial intervention would be required. In contrast to the delineation that Kent and Webster made between “commerce” and “police,” Emmet proposed a system more functional than categorical. In this way, Emmet’s concurrent power was conceptually distinct from states’ rights arguments. Emmet’s arguments suggest that concurrent-power theory had real content and was different in important ways from compact theory’s focus on state sovereignty and the chronological and legal priority of the states. Many aspects of concurrent-power theory in Gibbons—as well as some of its most vexing challenges—could be traced back to The Brig Wilson.
