The Thinking Behind Gibbons V. Ogden

Last year, I posted hither that I found Justice Bushrod Washington's master notes on Corfield v. Coryell. They are inwards a periodical held past times the Chicago History Museum. I am at nowadays writing a newspaper on Corfield and these notes, in addition to inwards the cast of that inquiry I convey uncovered a clue for agreement how the Supreme Court decided Gibbons v. Ogden. 

Gibbons is ane of the most famous Supreme Court cases in addition to is taught to virtually every police trace student. New York granted a monopoly on steamboat traffic inwards that state's waters to Robert Fulton in addition to Robert Livingston. In an thought past times Chief Justice Marshall, the Court held that the country police trace ran afoul of an Act of Congress (in essence, that in that location was federal preemption). The Chief Justice equally good (as was his style) offered upward a lot of influential dicta on the Commerce Clause in addition to the powers granted past times that provision to Congress. An of import signal inwards that dicta was that the Commerce Clause did non vest exclusive ascendency inwards Congress. The ascendency was instead concurrent. United States of America were complimentary to legislate on  topics that indirectly affected interstate commerce inwards the absence of congressional legislation. (Later the Court developed the Dormant Commerce Clause to found limits on that country regulation.)

Influenza A virus subtype H5N1 basic work inwards studying the Marshall Court is that nosotros know piffling virtually how its decisions were made. Most of the opinions inwards that era were written past times the Chief Justice, in addition to he gets the lion's part of the credit for them. But is that an accurate assessment? Given that most of his opinions were for a unanimous Court, in that location must convey been input from the other Justices into the finally product. There are, though, no internal memos that last from these cases, largely because in that location in all probability were no such memos inwards the outset place. The Justices worked in addition to lived together in addition to communicated orally.

In the Corfield notes, though, in that location is a smoking gun that relates straight to Gibbons. Corfield raised a  Commerce Clause question; namely, could New Bailiwick of Jersey regulate the harvesting of oysters inwards navigable waters or did that ascendency residue amongst Congress? Justice Washington outset considered this final result earlier Gibbons was decided. And his notes speak over at unopen to length a veto issued past times Governor Oliver Wolcott of Connecticut of a police trace that would convey retaliated against the New York steamboat monopoly past times non allowing the New York monopoly to operate inwards Connecticut. In that veto, Walcott contended that the New York police trace was unconstitutional in addition to explained that this conclusion was audio either because the commerce ability was vested alone inwards Congress or because the ability was concurrent in addition to the country statute was inconsistent amongst federal legislation. Washington made notes on both points.

What does this enjoin us virtually Gibbons? The response is that nosotros at nowadays know that ane Justice on the Court was thinking virtually the Commerce Clause work addressed past times Gibbons before that example reached the Court--Bushrod Washington. We equally good know that the source he found the most useful contained business office of the analysis that the Court ultimately adopted. Thus, in that location is circumstantial prove that Marshall's thought drew on Governor Wolcott's veto in addition to Justice Washington's inquiry for Corfield. Perhaps nosotros should start thinking virtually the Marshall Court, similar the Warren Court, equally a collaborative effort.