Journey over the Hudson River circa 1820 in a leisurely race through constitutional history. You can choose to ride in exact replicas of the steamships of either Mr. Gibbons or Mr. Ogden. As you meander along the Hudson on your journey from Elizabethtown to Manhattan, it won’t be long before Mr. Ogden hurls insults at Mr. Gibbons, and vice versa. Set yourself up in a nice place on the deck and watch the 19th century expletives fly!
Would you like to learn more about this magical clause that gives the federal government enough power to do whatever the hell they want to do whenever the hell they want to do it? Click below.
2 U.S. 1 (1824)
By an Act of the New York State legislature, Robert R. Livingston and Robert Fulton had the exclusive right to navigation by “boats moved with fire or steam” of all waters within the jurisdiction of New York for a term of years. The Chancellor was empowered to grant an injunction to anyone attempting to navigate New York waters with the boats in question (a/k/a steamboats). John R. Livingston obtained a license from Mr. Livingston and Mr. Fulton and further assigned said license to Aaron Ogden. With his steamboats “called the Stoudinger and Bellona” Mr. Ogden ran a ferry service from Elizabethtown, New Jersey (and other places in NJ) to the City of New York. Thomas Gibbons ran a competing ferry service from Elizabethtown to New York City with steamboats by an Act of the U.S. Congress passed on February 18, 1793. An injunction was awarded and upheld at a later hearing by the Chancellor in New York to restrain (meaning “stop”) Gibbons from operating steamboats under his congressional license. Said injunction was affirmed by “the Court for the trial of Impeachments and Correction of Errors,” the highest law and equity court in New York and appealed to the U.S. Supreme Court.
From Gibbons v. Ogden (Syllabus) 22 U.S. 1, 1-3 (1824)
The Relationship between the States and the National Government
Prior to the formation of the federal government under the 1787 Constitution, the states were loosely bound together by the Articles of Confederation. Chief Justice John Marshall described that relationship as follows: “[the states] were sovereign, were completely independent, and were connected with each other only by a league.” Marshall compares the states’ relationship to each other as “allied sovereigns” prior to the Constitution. But once this “Congress of Ambassadors” was converted into a legislature by the Constitution, “the whole character in which the States appear underwent a change.” Marshall’s decision fleshes out the parameters of that relationship.
From Gibbons v. Ogden 22 U.S. 1,187 (1824)
Interpreting the Commerce Clause
Chief Justice John Marshall looked to the text of the Constitution, specifically Article 1 Section 8 Clause 3, the Commerce Clause, which reads: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” At the outset, the question to be resolved is the extent of that power—whether the Constitution is to “be construed strictly.” Marshall dismisses the strict construction approach, arguing nothing in the Constitution supports strict construction; in fact, the language at the end of Article 1 Section 8 gives Congress “the means for carrying all other [powers] into execution” and expressly authorizes Congress “to make all laws which shall be necessary and proper” in furtherance of the preceding enumerated powers. Regulating commerce was centrally important to the founders. Marshall identifies this power to regulate commerce, including navigation, as “one of the primary objects for which the people of America adopted their government.”
From Gibbons v. Ogden 22 U.S. 1,187-188, 191 (1824)
What is Commerce?
“Our constitution being…one of enumeration, and not of definition” therefore requires Marshall to ascertain the “meaning of the word.” The Chief Justice reads “commerce” to mean something more than mere “traffic” and to include all “commercial intercourse between nations.” Significantly Marshall concludes he can “scarcely conceive” of a system “regulating commerce between nations, which shall exclude all laws concerning navigation.”
From Gibbons v. Ogden 22 U.S. 1,187-188 (1824)
What is the meaning of “among the several states?”
Marshall defines “among” to mean “intermingled with….[or] among others.” Trade need not “stop at the external boundary line of each state.” So, “commerce which concerns more States than one” rightfully falls under the Commerce Clause power of Congress, whereas “commerce which is completely internal, which is carried on between man and man in a State…which does not extend to or affect other States” does not fall under said power.
From Gibbons v. Ogden 22 U.S. 1,194-196 (1824)
What is Congress’ power under the Commerce Clause?
According to Marshall, the power to regulate commerce is the power “to prescribe the rule by which commerce is to be governed.” Additionally, Chief Justice Marshall set out the parameters of the power: “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.” Said limitations are “expressed in plain terms” and do not limit the regulation in question. Ogden’s attorneys acknowledged this power in the federal government but argued “the States may severally exercise the same power, within their respective jurisdictions.”
Marshall looked to the Slave Importation Clause (Article I, Section 9) which limits Congress’ ability to prohibit the importation of slaves prior to 1808 to prove that Congress has the exclusive power to regulate commerce. To Marshall, this exception in the Constitution to the power of Congress to regulate commerce proves the existence of the underlying power.
From Gibbons v. Ogden 22 U.S. 1, 196-200, 206-208 (1824)
“Can a State regulate commerce with foreign nations and among the states while Congress is regulating it?”
Marshall concedes that sometimes the states, while regulating “purely internal affairs” may interfere or infringe on a power of Congress. The founding fathers, anticipating this possibility, created the Supremacy Clause which declares both the Constitution and “the laws made in pursuance of it” are supreme to state laws. This decides the case in favor of the federal license: “In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.” Although a state may act properly in enacting a law, if it conflicts with a federal law, the state law must “yield” to the federal law.
Marshall is certain in his belief as to the magnitude and exclusivity of the Commerce Clause power in the federal government: “[T]he sovereignty of Congress, though limited to specified objects, is plenary [meaning “absolute”] as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government.”
From Gibbons v. Ogden 22 U.S. 1, 200, 210 (1824)
Is there any limit to Congress’ power under the Commerce Clause?
According to Marshall, the only limit is the power of the people to vote the Congress out of office:
“The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.”
From Gibbons v. Ogden 22 U.S. 1, 197 (1824)
So, a state cannot prevent the federal government from issuing a license to navigate waters in interstate commerce:
“This act demonstrates the opinion of Congress, that steam boats may be enrolled and licensed, in common with vessels using sails. They are, of course, entitled to the same privileges, and can no more be restrained from navigating waters, and entering ports which are free to such vessels, than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other, for every commercial purpose authorized by the laws of the Union; and the act of a State inhibiting the use of either to any vessel having a license under the act of Congress, comes, we think, in direct collision with that act.”
From Gibbons v. Ogden 22 U.S. 1, 221 (1824)
1. A guy named Ogden gets a monopoly from New York to operate steamships over the Hudson River.
2. A guy named Gibbons gets a license from the federal government (by a Congressional act) to operate steamships over the Hudson River.
3. Ogden gets an injunction from a New York court stopping Gibbons from operating his ferry and competing with his monopoly.
4. Gibbons goes to the Supreme Court to enforce his license.
5. Marshall says Congress has the power to regulate commerce among the states, under the U.S. Constitution.
6. Regulating commerce includes passing laws regarding navigation, trade, shipping and everything that takes place in the process of trade among states.
7. States can regulate commerce entirely within their borders (intrastate), but if that intrastate commerce impacts another state, the federal government can regulate it.
8. The federal government is supreme to the states pursuant to the supremacy clause in the U.S. Constitution.
9. So, if a state and the federal government come into conflict in the process of regulating commerce, the federal government wins.
10. If you don’t like it, American people, then all you can do is use the power of your vote to make a change.
1. Who was Thomas Gibbons?
Thomas Gibbons, the sixth of eight children of Joseph and Hannah (Martin) Gibbons, was born outside of Savannah, Georgia on December 15, 1757. He was raised at Mulberry Hill, the family plantation. In his lifetime, he was a plantation owner, lawyer, politician and a steamboat operator. Unlike his uncle and brother, Thomas Gibbons was a loyalist during the American Revolution, a factor that helped protect the family plantation during the British occupation of the area. After the war, because of his loyalty to the crown, Thomas Gibbons was convicted of treason and had his land confiscated. On appeal, his name was removed from the list under the Act of Confiscation but he could not vote or run for public office for 14 years.
He opened a profitable law practice in Savannah, in addition to running the family rice plantation on the banks of the Savannah River. He entered politics in 1791 as the campaign manager for Anthony Wayne, a candidate for a Georgia district office. Wayne won the election, however Gibbons was accused of manipulating the results as there were more votes than voters. Regardless, Gibbons was soon elected mayor of Savannah where he served from 1791-1792, 1794-1795, and 1799-1801.
In 1810, he purchased a summerhouse in Elizabethtown Point, New Jersey and began investing in the transportation industry. In 1817, he acquired a little steam ferry, the Staudinger, and in 1818, the Bellona. By 1817 he was running a steam ferry from Elizabeth Point to New Brunswick. Gibbons’ route connected to a line from Elizabeth to New York City operated by Aaron Ogden, which led Gibbons to enter into a partnership with Ogden. Gibbons owned a steamboat company based in Elizabethtown, New Jersey, and Ogden owned a steamboat company located in New York City. In 1818, Gibbons broke the partnership with Ogden to compete with him. According to the Drew University Archives, part of the Gibbons-Ogden falling out was personal:
“In the early years in Elizabeth, [Gibbons’] establishment of bachelor quarters involved him in a paternity suit. A little later his son-in-law earned his everlasting enmity (including one of the most vindictively exclusive wills in history) by remonstrating with him about the morality of his conduct and bringing Ann's mother into the picture. The terms of Gibbons' will, by which Gibbons ensured that no child of John Trumbull's would ever inherit one scrap of property from their grandfather, testify to that enmity, but also to the success of Thomas' business ventures. The will also explains why, when Aaron Ogden attempted to intervene on behalf of Trumbull and Ann, Thomas Gibbons turned against Ogden and began the comic opera affair that had him nailing a challenge to a duel on Ogden's door.”
Gibbons set up a ferry from New Jersey to New York in direct competition with Ogden’s line, and Ogden sued. Ogden held a Fulton-Livingston license to operate steamboats under the Fulton-Livingston monopoly. Gibbons held a federal coasting license, granted under a 1793 Act of Congress to operate steamboats between New York and New Jersey. Ogden secured an injunction on October 21, 1818 from the Court of Chancery of New York restraining Gibbons from operating his boats, and Gibbons appealed to the Court of Errors of New York, which affirmed the decision. Gibbons then appealed the case to the Supreme Court of the United States. The case made it to the United States Supreme Court in February of 1824 where Gibbons won and all monopolies on interstate waters were declared null and void.
Thomas Gibbons married Ann Heyward and had three children, Thomas Heyward, William and Ann. In 1791, when Gibbons was mayor, George Washington visited Savannah on a ceremonial tour of the South. Ironically, Mayor Gibbons (a former Loyalist) had the honor of addressing the president. According to the Drew University Archives: “[Gibbons] was one of the most prominent of Savannah's citizens, prominent in several senses, since one source indicates that he weighed something like three hundred pounds. Lawyer, plantation owner, pillar of the local Presbyterian church, Gibbons was still only 33.”
At the time of his death in New York City on May 15, 1826, he had built up the family estate considerably; it included rice and cotton plantations in Georgia and various businesses in the North. His son William inherited the entire estate. Thomas, having gambled and drank away the plantation given to him years early, and Ann, having married John Trumbell who crossed Gibbons years earlier, were disinherited.
2. Who was Aaron Ogden?
Aaron Ogden was born on December 3, 1756 in Elizabeth (formerly Elizabethtown) New Jersey. He graduated from the College of New Jersey (now Princeton University) in 1773. He served as a tutor in Barber’s Grammar School from 1773 to 1775. In the American Revolutionary War, Ogden served in various roles, serving from Brandywine to Yorktown, rising to the rank of brigade major. Ogden was wounded at the siege of Yorktown in 1781. He was appointed a lieutenant in the 1st New Jersey Regiment in the American Revolutionary War.
After the war, Ogden studied law with his brother, Robert, and was admitted to the bar in 1784. He practiced in Elizabeth, New Jersey. He began his political career serving as a presidential elector in the 1796 Electoral College that elected John Adams. Ogden also served as a clerk of Essex County from 1785 to 1803. His political career continued as he was elected as a Federalist to the United States Senate to fill the vacancy caused by the resignation of James Schureman. He was in office from February 28, 1801 to March 4, 1803 to complete the remaining two years of an unexpired term. He lost his bid for reelection to the Senate in 1802. Ogden then served as the eighth Governor of New Jersey in 1803 when Ogden was elected to the New Jersey General Assembly where he served until 1812. He was in office from October 29, 1812 to October 29, 1813. After running unsuccessfully for reelection, and declining an appointment by James Madison as major general of the Army in 1813, Ogden retired from political life. In 1823, Ogden moved to Jersey City and resumed practice of law. In 1830, he was appointed as collector of customs and served until his death. Ogden was elected trustee of the College of New Jersey in 1803, a post in which he also served until his death.
In 1811, Ogden built the steamer Sea Horse with engines designed by Daniel Dod, to run between Elizabethtown Point, New Jersey, and New York City. In 1813, Ogden became engaged in steamboat navigation. The New York water monopoly was granted to Robert R. Livingston and Robert Fulton by the New York Legislature. Ogden challenged the New York water monopoly in court, but lost in 1813 when the New York legislature upheld the Fulton-Livingston monopoly barring Ogden’s boat from New York waters. In 1815, Ogden agreed to pay large fees to Fulton and Livingston for a ten-year monopoly of steamboat navigation to run between the two points, his native town, Elizabethtown Point and New York, which eventually brought him into conflict with the line operated by Thomas Gibbons.
On October 27, 1787, Ogden married Elizabeth Chetwood, daughter of Judge John Chetwood, and they had seven children: two daughters and five sons. Ogden died on April 19, 1839 at the age of 82 in Jersey City, New Jersey. He is buried at First Presbyterian Churchyard in Elizabeth, New Jersey.
Ogden’s family shared Ogden’s interest in law and politics. Ogden' s son, Elias B. D. Ogden served as an associate justice of the New Jersey Supreme Court from 1842 until his death in 1865. His grandson, Frederick B. Ogden served as Mayor of Hoboken, New Jersey from 1865 to 1867. Ogden's nephew Daniel Haines later also served on two separate occasions as Governor of New Jersey.
3. What attorneys argued in Gibbons v. Ogden?
The chief lawyers for Gibbons were Thomas A. Emmet and Thomas J. Oakley. The chief lawyers for Ogden are William Wirt, Daniel Webster, and David B. Ogden.
Ogden’s attorneys made two arguments appealing to the power of the state governments: (1) river traffic was not commerce under the Commerce Clause, and (2) Congress does not have authority to interfere with New York State’s grant of an exclusive monopoly within New York’s borders and accordingly New York could control river traffic within New York all the way to the border of New Jersey and New Jersey could control river traffic within New Jersey all the way to the border of New York; thereby leaving Congress with the power to control traffic as it crossed the state line. In addition, the attorneys argued that Congress does not have authority to invalidate the New York water monopoly as long as Ogden was transporting passengers within New York. Ogden’s attorneys argued that states often passed laws on issues regarding interstate matters and that states could have fully concurrent powers with Congress concerning interstate commerce; therefore, the New York monopoly should be upheld.
Gibbons’ attorneys’ argument emphasized the power of the national government, arguing that Congress had exclusive national power over interstate commerce according to Article I, Section 8 of the Constitution, which states that Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several States.” Gibbons’ attorneys argued otherwise would result in confusing and contradictory regulatory policies made by each state.
From Gibbons v. Ogden – Steamships: Navigating For the Future, A Fight Between Two Partners, Commerce or Navigation?, Implications for the Future, http://law.jrank.org/pages/13617/Gibbons-v-Ogden.html
Click the link to view the Supreme Court Decree in Gibbons v. Ogden
The National Archives website, www.ourdocuments.com, is a great resource for primary source material. Make sure you get your hand stamped and come back to Constitutionland!
Gibbons v. Ogden Fun Facts written by Cindy Cheung, Esq.