Commerce

The Constitution’s commerce clause, included in Article I, section 8, declares: “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes….” This language is significant because it encouraged a nationwide policy governing[Page 100] commercial activity, thus fostering free trade among the states, and it provided a tool for extending the national government’s power into the states. The commerce clause and the cases relating to it that have come before the Supreme Court are also particularly helpful in understanding the evolution of federalism in the United States. Although the Framers of the Constitution clearly intended to charge the national government with the regulation of commerce with foreign nations and Native Americans, the extent of its power to regulate interstate and even intrastate commerce has often been the subject of great controversy.

Two ferry operators in New York first brought the issue to the Supreme Court in 1824. Licensed by a firm granted a monopoly by a 1798 state law, Aaron Ogden operated a steam-driven ferry between New Jersey and New York City. Thomas Gibbons had a permit under the federal Coastal Licensing Act (1793) for his own two boats, which he defiantly ran to New York despite Ogden’s license. After New York courts granted Ogden an injunction against his rival, Gibbons appealed to the Supreme Court. On the question of whether New York could grant such exclusive rights and thus exclude Gibbons from New York’s waters, Chief Justice John Marshall, writing in Gibbons v. Ogden, determined that it could not because Congress’s regulating power over commerce among the states does not stop at the state lines but may be exercised within a state.

Another important case, Cooley v. Board of Wardens (1851), however, allowed state regulation of commerce in purely local matters. A Pennsylvania statute required that vessels entering or leaving the port of Philadelphia have local pilots, whose specialized knowledge was necessary to safely navigate the port’s waters. The Supreme Court upheld the state statute on the grounds that unless the subject to be regulated required a uniform national policy, states were permitted to regulate local commerce as long as the federal government had not enacted a preemptive law concerning it.

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