Guest Essayist: Joerg Knipprath

Unlike many of his decisions, Chief Justice John Marshall’s opinion in the foundational case Gibbons v. Ogden (1824), which upheld the right of Gibbons to operate a ferry between Elizabethtown, New Jersey, and New York City in competition with his former partner, Ogden, was well-received by the public. It negated a New York State monopoly grant and struck a blow in favor of restive younger entrepreneurs who hoped to prosper by providing technological innovation and expanding infrastructure as the country’s population and commerce grew.

Judgment by the political elite was more divided. The struggle for dominance between the general government and the states was still a tightly-fought matter. Marshall’s reasoning provided the basis for a potentially robust use of Congress’s authority to regulate interstate commerce that reached deep into the internal affairs of the states. Even more troubling for some was his discourse, unnecessary to the result, about the states’ concurrent power–or lack thereof–to regulate interstate commerce when Congress had not acted.

The issue of concurrent versus exclusive Congressional powers was debated during the adoption of the Constitution. Alexander Hamilton devoted considerable attention to it in No. 32 of The Federalist. As so often, the charge was made that the proposed Constitution would result in a complete consolidation of the states into the national government.

Hamilton replied that the states retained “all the rights of sovereignty…which were not…exclusively delegated to the United States.” [Emphasis in the original.] Only those are exclusive that the Constitution makes so expressly (such as Congress’s power to “exercise exclusive legislation” over the District of Columbia); if there is an express grant to Congress and a like prohibition of that power to the states (such as Congress’s power to tax imports, while another part of the Constitution expressly restricts the states’ power to do so); or if there is an express grant to Congress and, despite textual silence on the matter, having the states exercise a similar power would be “absolutely and totally contradictory and repugnant” [Emphasis in the original.] (such as Congress’s power to “establish an uniform Rule of Naturalization”).

Hamilton distinguished those examples from an area of concurrent power, such as taxes, which might sometimes interfere with the policy of one or the other governments, but which would not be directly repugnant to either government’s constitutional authority. In Gibbons, Ogden argued that Congress’s power to regulate interstate commerce was concurrent with the states like power to tax, whereas Gibbons claimed Congressional exclusivity because “‘to regulate’ implies in its nature full power over the thing to be regulated, [and] excludes necessarily the action of all others that would perform the same operation on the same thing.” Marshall rejected Ogden’s analogy by distinguishing the taxing power. Marshall found Gibbons’s assertion more appealing, “There is great force in this argument, and the Court is not satisfied that it has been refuted.”

The tone of the opinion is emblematic of Marshall’s always-present inclination to favor national power over state power. The fear of overbearing state governments suffocating the national government may be difficult to comprehend today. But many in the founding generation, to which Marshall belonged, had witnessed what for them appeared to be, correctly or not, a dysfunctional Confederation characterized by economic chaos, unhealthy commercial rivalry, and financial insecurity.


Five years later, Marshall revisited the issue in Willson v. Black Bird Creek Marsh Co. There, Delaware authorized a company to build a dam across a small, but arguably navigable, creek in order to drain a swamp. In those days, such modern “wetlands” were viewed as health hazards because they were breeding grounds for mosquitoes. Willson obtained a license under the same federal law as Gibbons. He crashed his vessel into the dam and damaged it. When the company sued him, he claimed that the dam obstructed a navigable waterway. The company pointed to Delaware’s authorization, and Willson argued that the power to regulate commerce was exclusive in Congress.


Surprising in light of his Gibbons musings, Marshall rejected that argument because Congress had not acted directly to exclude state laws that affected small tidal creeks. He concluded that the law’s purpose to protect the public health was not “repugnant to the power to regulate commerce in its dormant State, or as being in conflict with any law passed on the subject.” To reach that conclusion, Marshall must have assumed that the state had some concurrent power to regulate in a way that directly affects interstate commerce (as in the case before him). If Congress’s power were exclusive, the state could not act whether or not Congress had passed a conflicting statute.

Following Willson, a state could regulate its internal affairs even if that directly affected interstate commerce, as long as Congress had not precluded such state action (the “statutory preemption” doctrine) and the state law did not violate implied restrictions on the states that arise, even in the absence of a federal statute, from the very existence and historical purpose of the Commerce Clause (the “dormant commerce clause” analysis). Marshall’s resolution posed another constitutional conundrum, namely, how to balance the state’s legislative power with the implied restriction from the dormant (unexercised) federal commerce power. Marshall raised that issue but did not resolve it.

The issue arose again in Cooley v. Board of Wardens (1851). A Pennsylvania law of 1803 required all vessels engaged in foreign or interstate travel to take on a pilot to navigate the ship to harbor. Any ship’s master who did not do so had to pay half the pilotage fee to the “Society for the Relief of Distressed and Decayed Pilots, their widows and children.” By further legislation, ships engaged in the Pennsylvania coal trade were exempted. Cooley, who operated under a federal license just as Gibbons and Willson had done, failed to pay the fee. When sued, he claimed that the law violated the Commerce Clause.

Justice Benjamin Curtis, speaking for 6 justices in the 7-2 decision, rejected Cooley’s argument. He treated the statute as simply a safety law to prevent accidents. Even the apparent discrimination in exempting coal ships and small vessels was not a problem, as it reflected merely a legislative judgment that certain types of vessels and crews might need assistance more generally than others. As to the Commerce Clause, Curtis held first that, by the accepted definition of commerce as including navigation, and by the actions of Congress in the 1789 law addressed in Gibbons, it was clear that Congress could regulate the use of pilots.

Curtis then addressed whether, in the absence of the 1789 law, the states could regulate pilots without running afoul of the “dormant’ Commerce Clause. If the power was exclusive in Congress, they could not. Neither could Congress authorize them to do so, any more than Congress could authorize the states to make their own rules of naturalization and immigration. However, since the 1789 law by Congress did just that as to pilotage, the power to regulate interstate commerce must not be exclusively national.

The opinion buttresses its conclusion with some “originalist” analysis. The text of the Constitution does not make the commerce power exclusive in Congress. The 1789 law, which operates on that same assumption, was adopted by the First Congress, to whose acts the Court has traditionally given great deference because most members had been active in the debates over the adoption of the Constitution. The nature of the power itself potentially covered so many subjects that it was unrealistic to exclude the states. Finally, the continued practice over six decades by Congress and the states in reliance on the concurrent nature of the power gave that view a strong constitutional foundation.

What remained was to decide how to draw the line between those subjects of interstate commerce the states could regulate and which they could not, even if Congress was silent. The Court held that the key was the “nature” of the subject legislated, whether it was “national” or “local.” If the subject could “admit only of one uniform system or plan of regulation,” it was exclusive in Congress. If it was one that called for the “superior fitness and propriety, not to say the absolute necessity, of different systems of regulation, drawn from local knowledge and experience and conformed to local wants,” it was concurrent. Due to the local variability and frequent changes of harbor conditions, particularly near rivers, the pilotage laws were of the latter type. The Pennsylvania law was constitutional.

Curtis’s solution was characteristic of the more state-friendly structural federalism of the Taney Court, where this case was decided. As noted earlier, Marshall viewed the states with suspicion and had a strong nationalist bent. As much as the Constitution’s text and history allowed, he emphasized Congress’s power to legislate in seemingly local matters. If Congress did not act on a subject, he treated the very existence of Congress’s power as a restriction on state legislation, if possible. President Andrew Jackson, whose sympathies generally lay more with the states, had elevated Taney to the Supreme Court in part to adjust the balance. Taney’s dual federalism treated the states and the federal government as two sovereigns, each with its domain secure from the other, rather than as a system of overall national dominance over semi-autonomous states. The national-local subject matter distinction of the Cooley opinion is a manifestation of that, although Curtis could not (and would not have been inclined to) negate Congress’s overall control of interstate commerce.

The decision gave a boost to the states’ power to regulate for the community’s health, safety, morals, and welfare. States increasingly passed statutes to address novel issues that arose out of the Industrial Revolution. Cooley made it more difficult for the commercial class to prevent such state regulatory laws on the grounds that they invaded the dormant powers of Congress.

The “Cooley Doctrine” has not been overruled. It is rarely used, in light of the policy analysis on which it is based for which judges are ill-trained. The doctrine has been replaced by other judicial formulae to balance the federal and state interests when Congress has acted in a field and federal preemption of the state law is the issue, as well as when Congress has not acted and the restraint on state law by the dormant Commerce Clause must be evaluated. In both situations, the Rehnquist and Roberts Courts in their quest for an invigorated federalism have been inclined to favor greater discretion for the states. Unlike 19th century federalism, when Congress generally did not pass regulatory legislation, today’s Congress and the federal agencies are hardly reticent to do so. The result is not decentralized policy-making but is more likely to be concurrent multi-level regulation at federal and state levels that imposes more obstacles in the way of innovation and efficiency.

Cooley v. Board of Wardens (1851) Supreme Court decision:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    VERY interesting case(s) and topic. Many Founders would be extremely distressed at ingress has made in to State and local governance. I doubt they would agree with the Federal Government passing laws, or worse, bureaucracies regulations that force the States to do something that the States then also have fund from their coffers.

    Hamilton’s argument in Federalists #32 was the same argument Madison and others argued during debates to ratify the Constitution; that a Bill of Rights was not needed because the Federal government could not act on anything that was not expressly granted to it. It is interesting that Madison eventually saw that the Federal government would assume powers that were not restricted and worked tirelessly to pass a BoRs in the 1st congress. Based on this essay and others it appears he took the view that the Federal government could act as long as it was not restricted from doing so. Perhaps having seen the Constitution amended to protect rights he felt more comfortable pushing a stronger Federal powers agenda knowing that those powers could be reigned in via amendments.

    Unfortunately, changing the Constitution via amendments appears to be dead idea. The Federal government, with all three branches in complicity, have expanded Federal powers into areas that are restrained by the Constitution.



Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *