Part One: The Early Cases

After deciding Gibbons v. Ogden in 1824, Marshall wrote two more Commerce Clause opinions before Roger Taney replaced him as Chief Justice in 1835. In both cases, no federal law had been enacted. In Brown v. Maryland (1827) the court dealt with a Maryland law that required importers of out-of-state goods to buy a fifty dollar license to sell the goods in Maryland. The law was challenged as a violation of the Commerce Clause and also as a violation of the Article I, Section 10, clause that prohibits states from laying “Imposts or Duties on Imports or Exports.” Marshall found it violated both clauses.

In considering the Commerce Clause issue, the Court alluded to, but never cited or quoted, a federal law that permitted merchants to import and sell goods from foreign countries. This allusion appears to be to a hypothetical federal law, however, not to an actually existing law:

To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. . . . Congress has a right, not only to authorize importation, but to authorize the imported to sell.

The Maryland law, said Marshall, impermissibly conflicted with the federal commerce power by taxing the mere right to sell imported goods. Had Maryland simply imposed a sales tax on the sale of the goods, it would have been within its authority, but requiring a state license to sell imports—construed as a tax or duty on the importer or the import business—impermissibly impinges on Congress’s authority to regulate commerce. Thus, even though the state law did not conflict with an existing federal law, the state law was unconstitutional.

Marshall’s opinion is particularly noteworthy for his recall of the need for national commercial policies in 1787, a statement echoing Justice Johnson’s concurring opinion in Gibbons:

The oppressed and degraded state of commerce previous to the adoption of the constitution can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It may be doubted whether any of the evils proceeding from the feebleness of the federal government, contributed more to that great revolution which introduced the present system, than the deep and general conviction, that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the States. To construe the power so as to impair its efficacy, would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity. (Emphasis added.)

Two years later in Willson v. Black-Bird Creek Marsh Co. (1829), however, the Court upheld the validity of a state law that authorized the damming of a navigable creek, which was presumably under federal jurisdiction because of its navigability. In his opinion, Marshall simply said, “We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject. There is no error, and the judgment is affirmed.” (Page 252; emphasis added) Here is the first unambiguous reference to a “dormant” commerce power—the federal power under the Commerce Clause that has not been exercised. That is, here, like in Sturges and Ogden, where the constitutionality of state bankruptcy laws was challenged, there was no conflicting federal regulation in effect. There could have been a federal law, had Congress “awakened” its commerce power and used it; but Congress had not used its power in any way relevant to this case, so the federal power was sleeping or dormant.

The Court’s upholding of the state law in Willson is also consistent with a rejection of the exclusivity argument. If the power to regulate commerce were exclusively the federal government’s power, then even if the federal government had not exercised its Commerce Clause power (that is, even if it were dormant), the states would be precluded from enacting any laws that do, in fact, regulate commerce, such as Delaware did here. The Court articulated no clear exclusivity rule; in fact, it did not apply a rule at all, unless the often used “totality of the circumstances” rationale is deemed a rule, but courts often hide behind the “totality of circumstances” language when they do not have apply a clear principle or test to the issue they decide. Delaware’s law was upheld, unlike the Maryland law in Brown, but it is difficult to say why.

This confusion over exclusivity continued into the years of the Roger Taney Court. A state law requiring a license to sell imported liquor was upheld in the License Cases (1847), but a state law to require aliens arriving in port to pay a tax was struck down in the Passenger Cases (1849). In neither case were there any relevant federal laws.

The exclusivity argument raised by Daniel Webster in the Gibbons case and subsequently ignored in the Willson case and the License Cases, but not in Brown and the Passenger Cases, was rejected once and for all by the Roger Taney Court in Cooley v. Board of Wardens of the City of Philadelphia (1852). In that case the Court upheld a state law requiring all ships that sailed into Philadelphia harbor to employ a local pilot. Philadelphia harbor is clearly on interstate and international—that is, navigable—waters. Congress had passed a law in 1789 that left the regulation of local navigational rules to the states unless and until Congress decided to regulate those matters. Thus, the case involved the constitutionality of both the federal and the state statutes: could Congress constitutionally delegate such regulation of navigation to the states?

In a rule that came to be known as the doctrine of selective exclusivity or selective exclusiveness, the Court, by Justice Curtis, held that the federal government had exclusive power to regulate activities that were inescapably national in scope and that demanded a national scheme of regulation; in matters of interstate or international commerce that did not require a national scheme of regulation, the states were free to regulate as long as the federal government had not also acted to regulate the matter:

Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress is to lose sight of the nature of the subjects of this power and to assert concerning all of them what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain. [Cooley v. Board of Wardens, 53 U.S., at 319.]

If the federal government had acted, however, its regulation would invalidate or preempt the state regulations:

The act of 1789 contains a clear and authoritative declaration by the first Congress that the nature of this subject is such that, until Congress should find it necessary to exert its power, it should be left to the legislation of the states, that it is local and not national, that it is likely to be the best provided for not by one system or plan of regulations, but by as many as the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits. [Cooley, id. Emphasis added.]

Was it constitutional for Congress to give the states its constitutional power to regulate commerce in this case?

Viewed in this light, so much of this act of 1789 as declares that pilots shall continue to be regulated "by such laws as the states may respectively hereafter enact for that purpose," instead of being held to be inoperative as an attempt to confer on the states a power to legislate of which the Constitution had deprived them, is allowed an appropriate and important signification. [Cooley, id.]

Justice McLean’s dissent digs into the question of the 1789 federal statute more deeply than Curtis’s opinion does. From McLean’s nationalist perspective, the ability of Congress to abdicate its responsibility to regulate commerce poses a problem of state-federal relations under the Constitution that the majority’s rule does not. The rule of selective exclusivity provided a relatively useful rubric for deciding Dormant Commerce Clause cases into the twentieth century. But nothing in constitutional law seems to last forever.