Constitutional Law I Federal Power II (Gibbons v. Ogden) Feb. 10, 2006.
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Transcript of Constitutional Law I Federal Power II (Gibbons v. Ogden) Feb. 10, 2006.
Constitutional Law I
Federal Power II(Gibbons v. Ogden)
Feb. 10, 2006
Spring, 2006 Con Law I - Manheim 2
Federalism & States’ Rights
The interplay between federal and state power Both governments regulate private
parties Because of federal supremacy,
federal law preempts state law broad federal power means narrower state
power narrow federal power means broader state
power
Spring, 2006 Con Law I - Manheim 3
Federalism – Forum for Mediating
Court Text of constitution suggest that allocation of
power is a judicial question Art. I, § 1: "All legislative Powers herein granted …" Amd X: "The powers not delegated to the US by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Congress Structure of federal gov’t suggests that division
of power is determined by states' in Congress Composition of congress; electoral college Amd XVII – Direct election of Senators
Spring, 2006 Con Law I - Manheim 4
The Commerce PowerDisputes over federalism often appear in the context of the commerce power Art. I, § 8, cl. 3: "The Congress shall
have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Must define
"commerce"
Must define
"among"
Must define
"regulate"
Spring, 2006 Con Law I - Manheim 5
Thomas Gibbons Aaron Ogden
v.
Spring, 2006 Con Law I - Manheim 6
Robert Fulton
Steamboat Clermont
Spring, 2006 Con Law I - Manheim 7
Gibbons v. Ogden (1824)New York law grants exclusive franchise to conduct ferry business between NY and NJFederal law grants franchise to Gibbons to engage in "coasting trade"
Spring, 2006 Con Law I - Manheim 8
Gibbons v. Ogden (1824)New York law grants exclusive franchise to conduct ferry business between NY and NJFederal law grants franchise to Gibbons to engage in "coasting trade"
• Is the NY law constitutional?• Does it violate any limitation in constitution?• Is it preempted by the federal law?
•might be, but only if federal law is valid
Spring, 2006 Con Law I - Manheim 9
Gibbons v. Ogden (1824)New York law grants exclusive franchise to conduct ferry business between NY and NJFederal law grants franchise to Gibbons to engage in "coasting trade"
• Is the NY law constitutional?• Does it violate any limitation in constitution?• Is it preempted by the federal law?
•might be, but only if federal law is valid• Is the federal law constitutional?
• Does it exceed congress' commerce power?
Spring, 2006 Con Law I - Manheim 10
Meaning of "Commerce"Interpretive Methodologies Originalism
“The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government”“Convention must have used the word in that sense”Historical validation
“power [over navigation] has been exercised from the commencement of the government, has been exercised with the consent of all”
TextualismSee Art. I § 9, ¶ 6 (limiting power over navigation)
Spring, 2006 Con Law I - Manheim 11
Does Commerce include Navigation?
Traffic Buying and selling of commoditiesIntercourse All species of commercial transactions
Spring, 2006 Con Law I - Manheim 12
Extent of Congress’ powerMarshall rejects “strict construction”Expansive interpretation of "commerce" these words comprehend every species
of commercial intercourse No sort of trade can be carried on ... to
which this power does not extendExpansive interpretation of "among" "Intermingled with"
Spring, 2006 Con Law I - Manheim 13
Does congress’ power extend to commerce withinwithin the States?Commerce among the States must, of neces-sity, be commerce with the States
if a foreign voyage may commence or ter-minate at a port within a State, then the power of Congress may be exercised within a State.
Spring, 2006 Con Law I - Manheim 14
If congress’ power extends to inter-state commerce, can this be exercised without regulating some aspect of commerce within the states themselves?
Spring, 2006 Con Law I - Manheim 15
What portion of the ferry trip between NY and NJ does congress have power to regulate? Can it regulate the intra-state portion? Wholly intra-state?
Spring, 2006 Con Law I - Manheim 16
"The genius and character of the whole gov't seems to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state."
Spring, 2006 Con Law I - Manheim 17
Gibbons' affect on NY population
Population Growth - NY & Phil
0
100,000
200,000
300,000
400,000
500,000
600,000
1800 1810 1820 1830 1840 1850
Year
Popu
latio
n
New York
Philadelphia
Spring, 2006 Con Law I - Manheim 18
Johnson ConcurrenceExpansive interpretation of “commerce” History/framers’ intent/nature of a constitution All “vital agents of commercial prosperity”Why write separately Federal power over commerce is exclusive
So as to leave unregulated as congress intends If exclusive, then NY has no power to regulate
Even had congress never licensed Gibbons Marshall’s view on this:
“There is great force in this argument, and the Court is not satisfied that is has been refuted.”
Spring, 2006 Con Law I - Manheim 19
The License Cases (1847)Marshall replaced by Taney (1836) Far less “federalist” in his viewsOn exclusivity of federal commerce power “mere grant of power to the general government
cannot be construed to be an absolute prohibition of any power over the same subject by the States.”
If not exclusive, state laws can still be preempted If exclusive, then sharper distinction needs to be
drawn between matters of interstate commerce and matters of “internal police.”
Spring, 2006 Con Law I - Manheim 20
Cooley v. Bd. of Wardens (1851)
Issue: Do states have power to regulate local
navigation?Rule (version 1): Navigation is part of commerce Congress’ power over commerce is concurrent States have retained power to regulate navigation
Unless congress denies (preempts) that powerRule (version 2): Navigation is part of commerce Congress’ power over commerce is exclusive States have no retained power to regulate navig’n
Spring, 2006 Con Law I - Manheim 21
Cooley v. Bd. of Wardens (1851)
Rule (version 2): States have no retained power to regulate navig’n But, Congress can adopt state law as federal law.
Was that done here? Can Congress delegate power back to the States?
Not if the constitution divested states of such power Compare Art. I § 10
Perhaps if divested by implicationRule (version 3): The grant of power over commerce to congress
Is sometimes exclusive, and Sometimes concurrent Depends on the
nature of the subject being
regulated
Spring, 2006 Con Law I - Manheim 22
Cooley v. Bd. of Wardens (1851)
Matters capable only of exclusive regulation (that “admit of only one uniform system”): Channels of interstate commerce
Air routes, sea lanes Instrumentalities of interstate commerce
Airplanes, shipsMatters capable of concurrent regulation (“best provided by many different systems”): Wholly intrastate activities
Trade; health, safety & morals (police matters)Which is port pilotage? Contrast captains