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Gibbons vs. Ogden

Gibbons vs. Ogden Steamboat Race

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! 

The Commerce Clause

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.

Gibbons v. Ogden In Depth

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)

Gibbons in Ten Easy Steps

 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.

Gibbons Fun Facts

Thomas Gibbons


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.

Aaron Ogden

 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.

Daniel Webster

  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,

Click the link to view the
Supreme Court Decree in Gibbons v. Ogden

The National Archives website,, 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.