Judicial Review, Nationalism,
and the Commerce Clause:
Contrasting Antebellum and
Postbellum Supreme Court
Making
Decision
ROBERT LOWRY CLINTON, SOUTHERN ILLINOIS UNIVERSITY
The still-influential progressive interpretation of American constitutional
history conceives the property-oriented judicial activism of the Supreme
Court in the late-nineteenth and early-twentieth centuries (the era of laissezfaire) to have been a natural and logical outgrowth of similar orientations
on the Marshall and Taney Courts. It is contended here that the progressive
theory is rooted in a serious misinterpretation of the early Supreme Court’s
constitutional decision making. Far from extending the lines of development
laid down by its predecessors, the turn-of-the-century Court in fact uprooted
the most important traditions of the antebellum era on the issues of national
power, commercial regulation, and the scope of the judicial function.
PROPERTY RIGHTS
IN
EARLY AMERICAN CONSTITUTIONAL LAW
While property is institutionalized in several provisions of the United States
Constitution, and was one of several important constitutional values recognized
throughout the republic’s first century, it was not until early in the twentieth
century that progressive historians, building upon an earlier foundation of
populist criticism, and reacting against a late-nineteenth century outburst of
judicial activism in behalf of institutional property rights, launched a revisionist
interpretation of American constitutional history which had the ultimate effect
of subordinating virtually all competing constitutional values to the idea of
property (Clinton 1989: 143-91).
NOTE: The author would like
to
thank Wallace Mendelson, Paul Kens, and Mark Graber for
helpful comments on an earlier version of this essay, which was presented in a special
to &dquo;Essays in Honor of Wallace Mendelson&dquo; at the 1991 annual meeting
of the Southwestern Social Science Association. Gratitude is also extended to Matthew
J. Franck, James R. Stoner, Jr., and to an anonymous reviewer whose extensive comments led to the final revision of the essay.
session devoted
857
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
Though progressive historiography has been subjected to serious criticism
in the post-World War II period (Brown 1956; MacDonald 1958; Wright 1958),
its influence nonetheless remains substantial, particularly in the field of Supreme
Court history, where the nonelective aspect of the federal judiciary lends
plausibility to arguments derived from the Constitution’s allegedly &dquo;undemocratic&dquo;
character Echoing Gordon Wood’s (1972: 513) assertion that &dquo;the Constituion
was an intrinsically aristocratic document designed to check the democratic
period;’ Jennifer Nedelsky (1990) has offered the most recent
comprehensive neo-progressive interpretation of American constitutional history,
tendencies of the
Madison’s famous distinction between the haves and the have-nots
(Clinton
184-86). According to Nedelsky (1990: 187-231), the framers
feared that this distinction would ultimately characterize American society, and
so sought protection for private property against incursions of popular majorities,
designing the constitutional system to assure that Wealth would be overrepresented in the government. When the Federalists lost control of Congress
and the executive in 1800, the Marshall Court allegedly established judicial
supremacy in order to consolidate the Federalist program for protection of property rights. In Nedelsky’s view, the Court essentially enforced Marshall’s program until 1937, by which time the &dquo;mythic&dquo; force of the idea of property had
become so firmly embedded in American character and institutions that judicial
enforcement was no longer necessary, except on &dquo;marginal&dquo; redistributional issues.
Though Nedelsky’s articulation is more rigorous and refined than its
predecessors, the characterization of American constitutionalism and judicial
review as &dquo;property-based&dquo; (and thus &dquo;undemocratic&dquo;) is clearly traceable to
centered
on
1990:
early twentieth-century progressive historiography. Endorsing E. S. Corwin’s
famous doctrine of vested rights, according to which judicial protection was
supposedly extended to favored property interests on the basis of extraconstitutional principles, as the most influential modem interpretation of Marshall’s
constitutional jurisprudence, Nedelsky (1990: 225-28) asserts that judicial
opinions of the laissez-faire
era &dquo;show an impressive continuity with the
Federalists’ vision of constitutionalism; with the &dquo;rights of property as the central
to state power,&dquo; and with the &dquo;suspicion of popular efforts to use
democratic power to threaten those rights.&dquo;
Similar approaches have been apparent in a number of prominent contemporary histories. R. Kent Newmyer (1968: 81) claims that the Marshall Court,
starting &dquo;from the assumption that morality and capitalism are synonymous,
made the corporation the vehicle of capitalism by identifying it with the enterprising individual;’ thereby laying the legal foundation for &dquo;the promotional,
non-regulatory state of post-Civil War America.&dquo; More recently, Melvin Urofsky
(1988: 242) has characterized the approach of the Marshall Court during the
first quarter of the nineteenth century as one of &dquo;unrestrained judicial nationalism
boundary
858
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
I
probusiness attitudes:’ laying a foundation for promotion of &dquo;massive corporate expansion&dquo; while preventing &dquo;interference with or regulation of corporate
enterprise&dquo;; unleashing &dquo;capitalism&dquo; while, at the same time, &dquo;preserving the liberty
that derived from the vested rights of property&dquo; Whereas Urofsky and Newmyer
stop short of suggesting the absence of any proper constitutional foundation
for the early Court’s decisions, Leonard Levy (1988: 136), by contrast, asserts
and
that the Court read natural law doctrines into the Constitution in order to protect the rights of property. Verging upon the ad hominem against views &dquo;fashionable
among conservatives&dquo; who &dquo;do not know what they are talking about;’ Levy
points to a &dquo;long history&dquo; of judicial activism and &dquo;result-oriented&dquo; jurisprudence:
&dquo;From its earliest years ... through the great constitutional cases of the Marshall Court, the Supreme Court played fast and loose with the Constitution,
reaching the results preferred by the policy choices of the majority of the Court.&dquo;
The progressive version of the relation between the early Supreme Court,
judicial activism, federal-state relations, and the constitutional protection of property rights thus retains substantial influence. In this view, virtually every major decision is interpreted as part of a conscious or semi-conscious program
which advances in a step-wise &dquo;progression&dquo; to the laissez-faire justice of the
late nineteenth century. The picture of American constitutional history which
emerges suggests that, when the turn-of-the-century Court decided such cases
as Knight, Lochner, and Dagenhart, it was doing little more than building upon
a foundation laid by Marshall and Taney. Though there have been variations
on the paradigm, its underlying theme has been challenged only rarely in the
past seventy-five years.l It will be the purpose of the remainder of this essay
to pose a challenge to this view of the early Supreme Court, focusing particularly
upon its alleged aggressive use of the commerce clause to place constitutional
nationalism in the service of property interests. Conversely, this essay will show
that the tum-of-the-century Court’s commerce clause decisions were illegitimate
departures from non-activist legal precedents established by Marshall and Taney,
and that these last-mentioned precedents are &dquo;non-activist&dquo; because they more
plausibly reflect a commitment to constitutionalism and democracy than to
capitalism
1
or
aristocracy.
recent years, the leading opponent of the progressive version of early Supreme Court
history has been Wallace Mendelson. Standing virtually alone among his colleagues in
political science, Mendelson (1982: 57-58) first challenged the progressive image of the
In
Marshall Court as "activist with respect to the powers of the federal courts, the sovereignty
of the nation, or the claims of property." He (1985a) has since questioned the populist
and progressive critiques of the early Court’s contract decisions, finding those decisions
fully compatible with the Constitution.
859
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
While the progressives may have been right in saying that both the
postbellum and the antebellum Supreme Court were &dquo;pro-property&dquo; in a general
sense, the early Court’s doctrines and decisions were far more faithful to established constitutional norms and more deferential to the policy judgments of
legislatures than those of the tum-of-the-century Court. In order to sustain the
progressive thesis, more must be demonstrated than that the early Supreme
decide federal-state conflicts in favor of the nation. The
supremacy clause of Article VI demands that all true federal-state conflicts be
resolved that way. In order to sustain the progressive view on the early Court’s
property-consciousness, more must be shown than that property rights were
often protected by the Court’s decisions. Property rights, broadly conceived,
are almost always protected by judicial decisions involving property issues, since
the cases which give rise to such decisions usually involve competing property claims, thereby necessitating a decision in favor of one or another set of &dquo;property rights&dquo;’ Proponents of the progressive view should thus have to show
that the Court’s early decisions involving federalism and property issues enhanced
national power at the expense of the states, and protected some property rights
at the expense of others, in ways that were not authorized by the Constitution.
Court tended
NATIONALISM
to
AND THE
MARSHALL COURT
to G. E. White (1982: 671), the &dquo;shared sense&dquo; of contemporary
historians on the Marshall Court originated in writings of the progressive era
and may be summarized as follows: &dquo;Nationalism, as practiced by the Marshall
Court, favored propertied elites by elevating the judiciary, ostensible protector
of the national interest, to the position of a buffer against egalitarian and
democratic tendencies, which tended to manifest themselves in the actions of
state legislatures&dquo; (White 1982: 674-75). On this view, the Marshall Court’s
&dquo;nationalism&dquo; was a foil which served to conceal its deeper commitment to &dquo;the
new philosophy of capitalistic exploitation&dquo; (White 1982: 674), a commitment
to be honored via enhanced judicial discretion.
B. F Wright (1967: 46) has noted that, of &dquo;the many cases in which the
Marshall Court did act as umpire [between the nation and the states], none
According
is of greater interest
of more strategic importance than McCulloch v Maryland,
produced intense and prolonged a controversy&dquo; In the face of
Maryland’s argument calling for a restriction of the implied power of Congress
to means without which its other powers would be completely ineffectual, the
and
2
none
or
so
One readily calls to mind Mendelson’s challenge to the progressive reading of Fletcher v.
Peck as a "pro-property" decision: that Fletcher "entailed a clash between the ownership
claims of the defrauded people of Georgia and those of innocent, third-party buyers ...
one property interest or the other would have to be upheld" (Mendelson 1985b: 343).
860
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
Court decided that Article I, Section 8 gave to the national legislature authority
sufficient to establish the Second Bank of the United States, and that a state
could not tax the legitimate operations of the bank (4 Wheaton 316, at 400-37
[1819]). The former holding was immediately attacked by the pseudonymous
&dquo;Amphyction&dquo; and &dquo;Hampden;’ of the influential &dquo;states’ rights&dquo; faction in Virginia,
as resting upon a theory of &dquo;broad&dquo; or &dquo;liberal&dquo; construction of the Constitution
(Kutler 1972: 54; Newmyer 1968: 44; Wright 1967: 47-48), thus reflecting a
&dquo;nationalist&dquo; bias on the Court, an eagerness to enlarge the power of Congress
beyond the scope provided in the Constitution (Corwin 1950: 17; Berger 1987:
86-96). It is this contention, adopted by critics of a later era for the purpose
of alleging that Marshall had &dquo;expanded&dquo; the powers of Congress to promote
business interests, that became central to the progressive charge that the Marshall
Court was &dquo;activist.&dquo;
A careful reading of Marshall’s opinion, however, together with his own
pseudonymous responses to the flurry of commentary which followed the decision, makes any such contention doubtful. First, there is scant reference to property in McCulloch, or in Marshall’s subsequent responses to critics. If such
a motive had been present, there would have been little reason not to emphasize
it in an age so preoccupied with economic development, at least in the offCourt &dquo;defenses.&dquo; Second, McCulloch was a law suit, and the decision is fully
explicable in terms of legal factors alone, each of which runs directly counter
to the earlier &dquo;states’ rights&dquo; or later &dquo;progressive’ readings of the case. The main
arguments put forward by Marshall are based on practice and precedent, con-
stitutional limits on judicial power derived from separation doctrine, the
&dquo;democratic&dquo; character of the Constitution, and straightforward textual considerations derived mostly from Article I.
The Chief Justice begins (Gunther 1969: 23-24) by suggesting that the
bank’s constitutionality &dquo;can scarcely be considered as an open question.&dquo; Bank
Acts had been passed by two separate Congresses, one the Federalist First Congress and the other a later Republican Congress, after full debate on the constitutional issue, resulting in a definitive &dquo;legislative exposition&dquo; of the relevant
provisions subsequently acted upon by the courts. The bank had thus been
sanctioned by almost thirty years of congressional practice and judicial precedent. Marshall concedes that, had the Bank Act been &dquo;a bold and daring usurpation;’ the Court might be entitled to intervene; but the question in McCulloch
is &dquo;one on which human reason may pause;’ and &dquo;if not put at rest by the practice of the government, ought to receive a considerable impression from that
practice.&dquo;
the interpretation of the necessary and proper clause entirely an
open question. Fourteen years earlier, the Court (per Marshall) had flatly rejected the idea that, in order to give effect to an enumerated power, Congress
Nor
was
861
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
restricted to means which were &dquo;indispensably necessary&dquo; (United States
Fisher, 2 Cranch 358 [1805]: 396). The simple truth was (and is) that there
are no such means. According to the Fisher Court, any means adopted by Congress in pursuit of a specified objective may be thought &dquo;unnecessary&dquo; if the
was
v.
obtained by other means.&dquo; Since there are always &dquo;other
means&dquo; it follows that any argument from indispensable necessity lands in an
infinite regress and is self-defeating because, when carried to the limit, its effect
is to deprive Congress of power to fulfill even concededly legitimate constitutional objectives. Prefiguring McCulloch, the Court concludes that Congress &dquo;must
possess the choice of means, and must be empowered to use any means which
are in fact conducive to the exercise of a power granted by the constitution.&dquo;
After offering a literalistic reading of the Preamble (Gunther 1969: 25) which
emphasizes the democratic basis of the Constitution in the phrase &dquo;We the
People;’ a reading which is to be repeated again and again throughout the
McCulloch opinion and in the responses to Amphyction and Hampden, Marshall
puts forward an array of textual arguments against the idea that the enabling
clause of Article I should be construed so as to deny government sufficient
discretion to fulfill legitimate constitutional objectives in the manner most
beneficial to the people the Constitution was intended to serve. In Marshall’s
view, the Constitution is derived from a fundamental right of self-government
and is an act of the whole people, not of state governments, and even less of
some parochial population fragment whose interests might be reflected in a
local legislature Article I is thus a straightforward delegation by the American
people to Congress to make any determination which is legislative in nature,
including those which concern the best way to implement valid governmental
objectives. Marshall insists that such choices are &dquo;legislative&dquo; because, short of
a restrictive interpretation of the necessary and proper clause which leads to
the above-noted regress and thus incapacitates Congress altogether, there is no
clear judicial standard for determining the &dquo;degree of necessity&dquo; required to justify
a particular legislative choice of means. Yet all agree that Congress must have
some choice of means, and so the discretion granted to Congress by the Constitution must be complete; else the people (taken as a whole) would be denied
the very right of self-government that the Constitution was designed to secure.
Marshall reiterates these arguments so frequently as to suggest that judicial
restraint and democracy are (and were intended to be) the central lessons of
McCulloch. In effect, Maryland had asked the Court to disregard three decades
of political and judicial practice in order to assert a yet-unheard-of judicial
authority to adjust the balance of constitutional power between states and nation on an ad hoc basis. Such an approach would have involved the federal
courts in subsequent determinations of the degree of necessity required to justify
laws implementing other policies pursuant to enumerated powers. Distinguishing
same
end
&dquo;might be
862
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
the &dquo;essential&dquo; from the merely &dquo;convenient&dquo; would necessarily have required
judicial assessment of the long-range effect of policy, compelling judges to make
continual judgments about the efficacy (not the constitutionality) of laws. To
charge a court that rejected this approach with &dquo;activism:’ or with &dquo;antidemocratic&dquo;
tendencies, is simply unfounded.
What of the McCulloch Court’s suggestion, in dicta, that it might be forced,
in unusual cases, to disregard congressional acts prohibited by the Constitution or adopted in pursuit of ends &dquo;not entrusted to the government&dquo; (Gunther
1969: 40)? Does such a suggestion amount to &dquo;judicial activism?&dquo; Though
Marshall provides no example in McCulloch to illustrate what the Court has
in mind, he does suggest one in his answer to Amphyction’s charge that McCulloch
might be read to justify congressional prohibition of a state tax on land as conducive to the collection of federal taxes. Without going so far as to say whether
the Court would actually invalidate this law, Marshall says that &dquo;such an act
would be an attempt on the part of Congress, ’under the pretext of executing
its powers, to pass laws for the accomplishment of objects not intrusted [sic]
to the government’
(Gunther 1969: 100). The context of the remark makes
it clear that Marshall believed the pretextual act to be unconstitutional not because
it is an inappropriate &dquo;means&dquo; for accomplishing a legitimate governmental objective (the point at issue in McCulloch), but because the purpose of the act,
according to Amphyction, was to destroy the states power of taxation-an &dquo;end&dquo;
so far beyond congressional authority as to pose a &dquo;clear case’ violation of the
Constitution. Amphyction’s example was a &dquo;straw man.&dquo;
Marshall’s dictum in McCulloch concerning the Court’s duty to disregard
acts either prohibited or ultra vires, though given without example, is also fully
consistent with Marshall Court statements in other cases, most prominently
Marbury v. Madison ( Cranch 137 [ 1803 ] ), the only case in which that Court
actually declined to give effect to a federal law. After invalidating a provision
which, in the Court’s view, enlarged its jurisdiction beyond constitutionally mandated limits, the Marbury Court provided examples of four national laws it would
regard as constitutional violations. Three of these involved obvious contravention of explicit prohibitions in Article I, Section 9: (1) a federal tax on goods
exported from a state; (2) a bill of attainder; (3) an ex post facto law. The fourth
involved an explicit congressional reduction of the evidentiary requirements
of Article III, Section 3, pertaining to treason trials. Like the jurisdictional provision invalidated in Marbury, the treason example involves constitutional and
statutory provisions addressed directly to the courts, in which the Court would
directly violate the Constitution by enforcing the statute Like Amphyction’s example, the Section 9 examples given in Marbury involve such clear constitutional violations that, were the Court to lend support to them while performing
regular judicial functions, it would be exposed to the charge of abetting the
&dquo;
863
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
congressional violation. For Marshall (1 Cranch, at 180), the Constitution governs
court and legislature.
Since McCulloch can hardly be viewed in such terms, if &dquo;the law is not prohibited and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be
to pass the line which circumscribes the judicial department, and to tread on
legislative ground&dquo; (4 Wheaton 316, at 423). This and a host of other statements
both
make clear that the Marshall Court saw the real issue in McCulloch as a separation of powers question; not &dquo;nationalism versus states’ rights;’ as so many modem
text-writers would have it. Michael Perry (1982: 33-34) has aptly noted that
McCulloch did not &dquo;involve the judiciary’s broad construction of a power-granting
provision of the Constitution so much as the judiciary’s deference to the electorally accountable policymakers’ impliedly broad construction of the provision.&dquo; Even Amphyction recognized this, admitting that some of the judges &dquo;may
have believed that it was for Congress to have judged of that ’necessity, and
propriety; and having exercised their undoubted functions in so deciding, that
it was not consistent with judicial modesty to say ’there was no such necessity
and thus to arrogate to themselves a right of putting their veto upon a law&dquo;
(Gunther 1969: 53).
THE MARSHALL COURT
AND THE
COMMERCE CLAUSE
related to the Marshall Court’s decision in McCulloch v Maryland is
that in Gibbons v. Ogden, 9 Wheaton 1 (1824), which contains the Supreme
Court’s first major interpretation of the commerce clause. The commerce clause
jurisprudence of the early Court is central to the progressive thesis, since it
is this provision which has been thought to have generated a &dquo;common market&dquo;
in the United States, thereby fostering the development of American capitalism
(Miller 1968: 28). In Gibbons, as in McCulloch, the Marshall Court has been
charged with &dquo;broad constructionism;’ thus setting in motion additional
&dquo;nationalizing tendencies&dquo; which were subsequently extended even further in
some respects by the Taney Court (Miller 1968: 46-48; Newmyer 1968: 113-14).
Congress’s power over interstate commerce was little exercised during the
first three decades of the republic, and its scope remained largely undefined
until 1824, the year in which Gibbons was decided. The events that gave rise
to the suit are well known. In 1808, the New York legislature, &dquo;for the further
encouragement of steamboats on the waters of this state;’ granted Livingston
and Fulton exclusive steamboat navigation privileges on the Hudson River, the
grant to be prolonged five years for each additional boat constructed by the
grantees, to a maximum of thirty years. Three years later the New York monopoly
acquired exclusive rights to steam navigation on portions of the Mississippi
River, by an act of the territorial legislature of Louisiana. The Fulton-Livingston
Closely
864
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
monopoly thus &dquo;held the key to the two most important ports in North America&dquo;
(Mendelson 1949: 567).
hardly need remark that the steamboat monopoly was not a popular
creature; and after acquisition of its Mississippi River privileges, other states
began to fight back. Connecticut, New Jersey, and Ohio retaliated by closing
their waters to ships licensed by the monopoly; and five other states established
monopolies of their own. Even New York lawmakers lost sympathy for it when
petitions for relief began to flood the Albany statehouse. ’At least four select
One
and came to the same conclusion: the steambut
the doctrine of vested interest-as yet unmonopoly
the
of
the
mitigated by
concept
police power- prohibited direct legislative relief.
The problem then became one of finding indirect methods to accomplish what
could not be done directly&dquo; (Mendelson 1949: 568). Ogden obtained a license
to navigate the Hudson from the monopoly in 1815. Gibbons, licensed under
the Federal Coasting Act of 1793, ran boats to New York on the Hudson. Ogden
sued. The New York courts ruled in favor of the monopoly, and Gibbons appealed to the Supreme Court.
Marshall’s opinion reveals an approach similar to that in McCulloch.
&dquo;Commerce&dquo; is defined as &dquo;intercourse’ which affects more than one state, the
regulation of which is treated as one of the &dquo;ends&dquo; entrusted to the national
government. Congress is therefore empowered to legislate on any subject of
commercial activity which, in its nature or effect, transcends a single state; and
a state law in conflict with a legitimate federal regulation is void to the extent
of the conflict (9 Wheaton 1, at 189-211 [1824]). Rather than resting its decision on an alleged &dquo;exclusive&dquo; national commerce power (invalidating all state
committees studied the
boat
matter
was a menace
commercial
regulations on purely constitutional grounds), arguably Marshall’s
of policy (9 Wheaton 1, at 209), the Court instead elected
preference
to base its ruling on the federal Coasting Act, which provided for national licensing and regulation of ships employed in the coasting trade (9 Wheaton 1, at
211-19). It was deemed irrelevant whether the steamboat monopoly was enacted
&dquo;in virtue of a concurrent power ’to regulate commerce with foreign nations
and among the several states: or in virtue of a power to regulate their domestic
trade and police&dquo; (9 Wheaton, at 210).
As in McCulloch, the Court stressed the idea of representative democracy
and corresponding limits on judicial power, reasoning that national legislative
power, with respect to objects within its competence, was &dquo;plenary;’ admitting
of no limitations aside from those &dquo;prescribed in the constitution&dquo; According
to the Gibbons Court, &dquo;[t]he wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elecas a matter
tions,
they
are, in
this,
have relied,
as
in many other instances ... the sole restraints on which
them from its abuse’ (9 Wheaton, at 196-97). The
to secure
865
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
national
commerce
power thus
extends, if Congress chooses
to
exercise it, not
merely to &dquo;external&dquo; concerns, but also &dquo;to those internal concerns which affect
the states generally;’ and with which Congress finds it necessary (or appropriate)
to interfere &dquo;for the purpose of executing some of the general powers of the
government&dquo; (9 Wheaton, at 195). Conversely, whenever Congress has not elected
to exercise its plenary authority over a particular subject of commercial activity within a state (i.e., when Congress has found it &dquo;not necessary to interfere,
for the purpose of executing some of the general powers of the government&dquo;),
and where the activity in question does not concern &dquo;more states than one;’
then the activity may be considered &dquo;completely internal&dquo; and so properly a
subject of state regulatory authority (9 Wheaton, at 195).
Though Marshall recognizes the existence of such a thing as &dquo;intra-state’
commerce, he does not allow that there is an intra-state commerce beyond the
reach of congressional authority. Marshall insists that there can be no limitations
on the federal commerce power which stem either directly or indirectly from
the mere existence of reserved state authority under the Tenth Amendment,
irrespective of whether the state authority is conceived as &dquo;concurrent&dquo; power
to regulate commerce or as state &dquo;police&dquo; power In the most crucial lines of
the Gibbons opinion, Marshall declares that the commerce power &dquo;is vested in
Congress as absolutely as it would be in a single government [i.e., if there were
no states], having in its constitution the same restrictions on the exercise of
the power as are found in the constitution of the United States&dquo; (9 Wheaton,
at 197). But if there were no states, there would be no Tenth Amendment. Marshall
thus clearly rejects the approach which later came to be known as &dquo;dual
federalism;’ the idea that state reserved powers, as such, bar certain exercises
of national authority. For the Gibbons Court, restrictions on the federal commerce power (eg., those in Article I, Section 9) are (and must be) &dquo;expressed
in plain terms, and do not affect the questions which arise in this case&dquo; (9
Wheaton,
at
196-97).
Marshall’s approach to the problem of state and federal authority in the
field of commercial regulation is further elaborated in two decisions handed
down a few years after Gibbons. In Willson v. Blackbird Creek Marsh Co., 2 Peters
245 (1829), the Court upheld Delaware’s authorization of a dam across a small
but navigable stream, the twofold purpose of the dam being swamp drainage
to reduce the incidence of malaria and promotion of commercial development.
Though Willson, like Gibbons, held a license to navigate under the Coasting
Act, the Court reasoned that the object of the congressional act had not been
&dquo;to control state legislation over those small navigable creeks into which the
tide flows, and which abound throughout the lower country of the Middle and
Southern States&dquo; (2 Peters, at 252). Since Congress had not so exercised its power
&dquo;as to affect the question;’ invalidation of the Delaware Act would have required
866
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
construing the
state
law
to
be
&dquo;repugnant to
the power
to
regulate
commerce
in its dormant state;’ which the Court was unwilling to do &dquo;under all the
circumstances of the case&dquo; (2 Peters, at 252).
Why the Court declined to construe the state law in relation to the &dquo;dormant&dquo;
power of Congress is not difficult to understand when the &dquo;circumstances&dquo; alluded
to in Willson are contrasted with those surrounding Gibbons v. Ogden. The main
purpose of the steamboat monopoly was economic gain, necessarily to be ob-
tained at the expense of other states the inhabitants of which were not represented
in the New York legislature. The Court’s logic on this point is identical to the
McCulloch Court’s reasoning that Maryland could not tax U.S. citizens
unrepresented in its legislature Delaware’s purpose was to improve the health
of its own inhabitants and enhance economic growth. In Willson, the obstruction of navigation was entirely incidental and occurred in the interior of a state
at a large distance from the nearest main artery of commerce (the Delaware
River). By contrast, the obstruction of commerce in Gibbons was the immediate
object of the act and took place on a major inland waterway (the Hudson River)
which borders several states. The type of economic aggrandizement apparent
in the steamboat monopoly was exactly the kind of parochial embarrassment
that prompted adoption of the commerce clause in the first place. Yet to say
the same about Delawares swamp-drainage policy would be absurd.
Aggrandizement had been present, however, in Brown v. Maryland, 12
Wheaton 419 (1827), in which the Court invalidated a state requirement that
importers of dry goods purchase a license to wholesale from the state The Court
held that Congress had authorized importation (and implicitly sale) of such
goods in the &dquo;original package;’ and thus that the state licensing requirement
interfered with foreign commerce as implicitly regulated by Congress. (The Court
also found a violation of the Article I, Section 10 prohibition of state taxes on
imports or exports without congressional consent.) As in Gibbons, Marshall
declined to rest the decision on a alleged &dquo;exclusive&dquo; power of Congress to regulate
commercial activity-even foreign commerce; yet, in the &dquo;implicit regulation&dquo;
aspect of Brown, the Court appeared to concede to Congress something very
like the &dquo;dormant&dquo; power of regulation suggested in Willson and later constitutionalized in the famous Cooley decision of 1851, in which the Taney Court
upheld a Pennsylvania law requiring the use of local pilots in Philadelphia’s
harbor on the ground that the act, though a regulation of commerce, was also
an important local safety measure (Cooley v. Board oJPort Wardens, 12 Howard
299
[1851]).
Cooley is fully in accord with the theory of state and federal power articulated
in Gibbons v. Ogden (9 Wheaton, at 197-210), for it makes little
Marshall
by
constitutional difference whether a particular exercise of state authority be called &dquo;commerce’ or &dquo;police&dquo; if that authority is derived from an undivided residuum
867
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
of reserved power, and national authority over the same subject is absolute
whenever exercised. Since the Constitution limits the exercise of state authority
in two ways, first by explicit prohibition (as in Article I, Section 10), and second
by collision with national law (Article VI), the only constitutionally relevant
question, absent violation of an explicit prohibition, is whether a state act
(whatever it is called) runs afoul of a legitimate exercise of national legislative
authority (either expressly or by implication). If Marshall &dquo;preferred&dquo; an exclusive
national commercial authority, his constitutional literalism never allowed adoption
of such a theory as a matter of law. On the other hand, if Marshall preferred
to restrict state authority by encapsulating it under such a heading as &dquo;police
power,&dquo; his apparent sense that such a move would amount to an oversimplification of constitutional reality, given the divergent sources of state and federal
authority, ultimately blocked this approach. By refusing to adopt formulaic
solutions, Marshall and his colleagues suggested fruitful avenues for subsequent
constitutional analysis of the commerce question, at the same time pointing
the way to a fundamental modem maxim of judicial restraint: that constitutional issues should be resolved on the narrowest possible grounds.
’
THE TANEY COURT
The
Taney
AND THE
COMMERCE CLAUSE
Court first encountered difficulties arising from
1837, when, in New York v. Miln, 11 Peters 102
commerce
(1837),
clause
litigation
concept
of state police power ostensibly derived from Marshall formed the basis for
a decision upholding a New York statute requiring a report of passenger identification information (backed up by stiff penalties) from all shipmasters arriving
in New York from foreign countries or other states. The case is the earliest example
of a point made by Felix Frankfurter (1937: 32) a century later, that &dquo;[w]hat
in Marshall was the beginning of analysis, for lesser judges became tags. Judges
throughout the land rested on an uncritical use of the police power, and rendered
mechanical decisions in Marshall’s name.&dquo; Though Justice Barbour’s opinion
for the Court purported to rest the decision entirely upon Marshall’s Willson
doctrine (i.e., that the identification requirement was a &dquo;local safety&dquo; measure
designed to protect local citizens against the effect of &dquo;undesirables&dquo;), the Court’s
hasty dismissal of any need to consider the state’s authority to regulate comin
a
belied its discomfort. Barbour’s opinion appears to reflect his position
the Court as a strong &dquo;states’ rights&dquo; advocate, who was nonetheless willing
to narrow the definition of &dquo;police power&dquo; in ways that would accommodate
the &dquo;nationalist&dquo; wing of the Court. Justice Thompson, an even stronger proponent of states’ rights than Barbour, and who had written the first draft opinion
in Miln-an opinion grounded upon a theory of &dquo;concurrent&dquo; state power to
regulate commerce also claimed to have been derived from Marshall, had not
been so accommodating; hence, Barbour was selected to author the Court’s
merce
on
868
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
final word in the case (Hay and Rotunda 1982: 79-80).
The Court’s opinion in Miln also suggests discomfort with its decision to
lump together a law requiring identification of passengers to protect local citizens
against the spread of undesirable &dquo;aliens&dquo; with the earlier law authorizing construction of a dam to protect local citizens against the spread of dreaded disease
(Willson). The discomfort was fully justified; for, as Justice Story pointed out
in dissent, Chief Justice Marshall, before his death, had thought that New York’s
&dquo;barrier to discourage the arrival of welfare recipients&dquo; (Ducat and Chase 1983:
547) was unconstitutional because it &dquo;fell directly within the principles
established in the case of Gibbons v. Ogden&dquo;; not those established in Willson
v. Blackbird Creek.3 But Barbour’s conception of the exclusivity of the states
police power was as inflexible as his conception of the exclusivity of the nation’s power to regulate commerce. Contending that the state policy power was
&dquo;unqualified and exclusive;’ Barbour thought it &dquo;as competent and as necessary
for a state to provide precautionary measures against the moral pestilence of
paupers, vagabonds, and possibly convicts; as it is to guard against the physical
pestilence, which may arise from unsound and infectious articles imported,
or from a ship, the crew of which may be laboring under an infectious disease&dquo;
(11 Peters 102,
at
142-43
[1837]).
The difficulties that the Court encountered in Miln on the relation of state
and federal powers in commercial regulation cases continued unabated for a
decade-and-a-half. In the License Cases (5 Howard 504 [1847]), the Court upheld
a state licensing requirement for the sale of imported liquor As Newmyer (1968:
103) has noted, &dquo;the Court was able to decide the case but not the law,&dquo; and
six separate opinions (all concurring) were delivered. Two years later, this lack
of consensus seemed even more pervasive in the Passenger Cases 7 Howard
283 (1849), where eight separate opinions were written (three dissenting) in
a decision invalidating two state laws which imposed taxes on alien passengers
arriving from foreign ports. As Newmyer (1968: 105) again has noted, this decision, when read together with the others we have been discussing, reflected
contradictory desires both on the Court and in the country, and &dquo;made no
constitutional sense.&dquo;
These decisions reflect a temporary breakdown of the Marshall Court’s earlier
consensus on nationalism, the commerce clause, and the judicial function. Prior
3
It has often been
thought that Story’s remark proves that Marshall believed the national
power to be exclusive, but such a view is not supported by the evidence. First,
Marshall never stated that this was his belief. Second, whenever he was invited to adopt
this view as a judge, he declined. Third, adoption of exclusivity is unnecessary for invalidating the law in Miln. The "implication regulation" aspect of Brown v. Maryland is
sufficient. It thus appears that the theory was Story’s and that Marshall never brought himself
into full agreement with it.
commerce
869
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
the Cooley decision of 1851, the Court had apparently split into three camps
of similar size and influence. First were the nationalists, primarily Story, Johnson,
and Clean, who believed that the power of Congress over interstate and foreign
commerce was completely exclusive, and that the Constitution forbade any state
act on the subject, even if the act ostensibly regulated pursuant to other conceded powers of the state (e.g., police powers or eminent domain). Justice Story,
dissenting in Miln (11 Peters 102, at 156), says that it &dquo;has been argued that
the Act of New York is not a regulation of commerce, but is a mere police law
on the subject of paupers.... A state cannot make a regulation of commerce
to enforce its health laws, because it is a means withdrawn from its authority.&dquo;
Second were the states’ righters, especially Barbour, Thompson, and Daniel,
who held that the national commerce power is shared fully with the states if
Congress had failed to act. For Chief Justice Taney (who was apparently at first
in sympathy with this group, but later acquiesced in the Cooley Compromise,
albeit silently), the &dquo;controlling and supreme power over commerce with foreign
nations and the several states is undoubtedly conferred upon Congress. Yet,
in my judgment, the state may, nevertheless, for the safety or convenience of
trade, or for the protection of the health of its citizens, make regulations of commerce for its own ports and harbors, and for its own territory; and such regulations are valid unless they come in conflict with a law of Congress&dquo; (The License
Cases, 5 Howard 504, at 579 [1847]).
Third were Justices Curtis (architect of the Cooley Compromise), Woodbury, and perhaps the later Taney, who thought that some subjects of commerce were such as to require a uniform rule, but that others were not of this
character, and might be governed by the states whenever Congress had not preempted the field. In other words, the national commerce power is &dquo;exclusive&dquo;
with respect to some subjects, and &dquo;concurrent&dquo; with respect to others. Though
Marshall had been unwilling to bring about a final resolution of this issue, it
is difficult not to find a hint of his commonsensical, &dquo;circumstantial&dquo; approach
(not to mention his rhetorical style) in the following passage on state pilotage
laws from Justice Curtis’s opinion for the Court in Cooley: &dquo;[T]he power to regulate
commerce embraces a vast field, containing not only many, but exceedingly
various subjects, quite unlike in their nature; some imperatively demanding
a single uniform rule, operating equally on the commerce of the United States
in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessity of navigation&dquo; (12
to
Howard,
at
319).
The remaining aspect of the Cooley decision
was the Court’s acknowledgethat there was no commercial activity beyond the reach of Congress. That
Marshall had clearly implied as much in Gibbons v. Ogden has already been
suggested. Indeed, the Taney Court arguably had gone even further more than
ment
870
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
decade before Cooley when it held, in United States v. Coombs, 12 Peters 72
(1838), that Congress, in order to protect interstate and foreign commerce from
interference, was constitutionally entitled to authorize federal prosecution of
persons who &dquo;found&dquo; articles of commerce on land after those articles had been
cast off a ship in distress, thus regulating activities that were not themselves
&dquo;commerce&dquo; (Currie 1985b: 1118). This doctrine, coupled with the Cooley Court’s
rule of &dquo;selective exclusiveness:’ formed the basis of the Court’s commerce clause
jurisprudence until the late nineteenth century.
Aside from the political differences on the Taney Court, its reluctance to
adopt a &dquo;mixed&dquo; solution to the commerce clause quandary prior to Cooley may
have resulted from fears (not altogether unfounded) that such an approach would
enlarge the Court’s discretion, thereby compromising the judicial function. Justice
McLean, for example, nationalist though he was, nonetheless entertained a large
scope for the states exercise of reserved power, defining national authority more
narrowly than one might have expected, so as to preserve its &dquo;exclusivity&dquo; and
reduce the need for judicial discretion. On the other side, Justice Barbour was
willing to define national power more broadly, and state power more narrowly,
than one would expect from a strong proponent of states’ rights, thus preserving the &dquo;exclusivity&dquo; of state police powers. The effect of the McLean and Barbour
doctrines, read together, would be to generate a clean separation between national
commerce and state police power, so that the multifaceted problems which
confront the Court in commercial regulation cases might be susceptible to the
sort of formulaic solutions previously rejected by Marshall’s Court. Though the
Taney Court never put this into practice, the &dquo;clean separation&dquo; was effected several
decades later by the turn-of-the-century Court’s adoption of dual federalism,
where the Cooley Court’s assertion that some subjects of commerce call for diverse
(local) regulation during periods of congressional silence gets turned into the
idea that the Tenth Amendment requires state regulation of such subjects, or
else no regulation at all.4
a
BEYOND MARSHALL
AND
TANEY
Despite these fears, the Cooley
native does
4
not seem to
Court’s rejection of the McLean-Barbour alterhave caused the worst to materialize, at least for a time.
Mendelson (1980: 98), dual federalism "meant that states’ rights somehow
limited even the expressly delegated national powers
for some, but not for all, purposes. Thus
dual federalism protected ’reputable’ business in its more modem transgressions (e.g., trusts
and child labor), but not in such old-fashioned immoralities as prostitution, gambling,
impure foods, liquor, narcotics, or ’fraudulent’ margarine." In this light, dual federalism
enhanced the Court’s discretion to prefer some kinds of property over others on a caseby-case basis, an approach which contrasts sharply with those of Marshall and Taney.
According to
871
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
Neither the Marshall
nor the Taney Court invalidated any federal law on comclause grounds; suggesting that the Court, after Cooley, followed a policy
of deference similar to that of the Marshall Court. In the three decades
immediately following Taney’s death, the Court flirted with dual federalism in
two cases in which acts of Congress were invalidated partly on commerce clause
grounds; but the fact that, during that thirty-year period, the number of national
laws challenged under the commerce clause was almost four times the number
challenged before the Marshall and Taney Courts combined (Gavit 1970:
390-408, 539), makes it difficult to regard these cases as anything but
anomalies.55
All this contrasts sharply with the period following the turn of the century.
In the first decade of the present century, the Court struck down seven acts
of Congress on commerce clause grounds; and nine more between 1910 and
1932 (Gavit 1970: 417-529, 539). Since most of these acts were invalidated
on the ground that they invaded Tenth Amendment reserved state powers, it
follows that the Court had finally adopted the theory of dual federalism that
had been foreshadowed by the McLean-Barbour approach but ultimately rejected by the Taney Court in Cooley The heart of dual federalism is the idea
that state police powers comprise definite limits on the powers of Congress,
and that the reach of these state powers does not depend upon the extent of
Congress’s exercise of its own delegated authority. Regarding national commerce
and state police powers as mutually &dquo;exclusive&dquo; categories, dual federalism
effectively eliminates the zone of concurrent power with which, inter alia, the
supremacy clause of Article VI was designed to deal, and therewith some of
the uncertainty which might be thought to arise from the use of Marshall’s more
flexible approach.
The most famous early application of dual federalism occurred in United
States v E.C. Knight Co., 156 U.S. 1 (1895). Mischaracterizing &dquo;an indictment
involving interstate sales as one involving manufacturing&dquo; (Currie 1985a: 388),
the Court declared that sugar refining affected interstate commerce only
&dquo;indirectly&dquo; and that monopolization of the manufacture of that commodity
was no violation of the Sherman Act. This decision amounted to a categorical
repudiation of Marshall’s reasoning in Gibbons, since there was no question
that the monopoly in Knight (about 97 percent complete and located in
merce
5
The
two acts were invalidated in United States v. De Witt, 76 U.S. 41 (1869) (consumerprotection law) and the Trade Mark Cases, 100 U.S. 82 (1879) (provision embedded in
a law regulating patents and copyrights). A bit of irony attends these two decisions since,
though they
seem to
on commerce
commercial
clause
be the earliest instances of the Court invalidating acts of Congress
grounds, in neither instance did Congress regard the measures as
regulations.
872
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
‘
concerned &dquo;more States than one’ (since most of the sugar was
consumed outside Pennsylvania). The Court’s position was that, since manufacturing was necessarily carried on within a single state, &dquo;manufacturing&dquo; was not
&dquo;commerce’ within the meaning of Article I. The matter thus fell under the states
police powers, not the commerce clause, despite the fact that most of Pennsylvania’s refined sugar was destined for shipment in interstate commerce, despite
the Taney Court’s Coombs holding that Congress could regulate activities under
its commerce power that were not themselves &dquo;commerce;’ and despite Marshall’s
conclusive argument that the Tenth Amendment does not circumscribe the
plenary powers of Congress.
That the Knight Court had adopted the McLean-Barbour dual federalist approach is apparent in its assertion that state police powers were &dquo;essentially
exclusive.&dquo; On the other hand, &dquo;the power of Congress to regulate commerce
among the several States is also exclusive&dquo; (156 U.S., at 9 [1895J). Yet Marshall
had said in Gibbons that &dquo;Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior&dquo;
(9 Wheaton at 194 [1824J). And under the Taney Court’s Cooley approach, diverse
(local) regulation of commercial activities even in the absence of congressional
action would have been justified only if the subject had been one &dquo;imperatively
demanding that diversity,&dquo; hardly the case under the Knight scenario.
Perhaps the most notorious example of the Court’s use of the Knight approach
is found in Hammer v. Dagenhart, 247 U.S. 251 (1918), where the Court invalidated a federal law prohibiting shipment in interstate and foreign commerce
of goods produced in mines or factories employing children below specified
ages or in excess of specified hours. Relying ostensibly upon the &dquo;manufacturingcommerce&dquo; distinction elaborated in Knight, but in truth going much further
in its restriction of congressional authority, the Dagenhart Court read the national commerce power to extend only to &dquo;transportation&dquo; of &dquo;inherently harmful products.&dquo; Since the goods produced by child labor were &dquo;of themselves
harmless:’ the Court viewed the statute as exerting &dquo;a power as to a purely local
matter to which the federal authority does not extend&dquo; (247 U.S., at 276 [1918]).
The Court reinforced its ruling with the dubious suggestion that Congress could
not regulate matters of local concern by &dquo;prohibition of the movement of commodities in interstate commerce;’ in spite of another important Taney Court
holding in United States v. Marigold, 9 Howard 560 (1850), that Congress could
prohibit importation of counterfeit coin as a &dquo;regulation&dquo; of commerce (Currie
Pennsylvania)
1985a:
354).
Again the dual federalist approach
is apparent in the reference to those
which
doctrine
of exclusive state police power
&dquo;purely
Knight’s
extends. Yet, despite the reference, it is fair to note that the real effect of the
decision was to divide authority &dquo;between state and nation so as to extinguish
matters
local&dquo;
to
873
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
authority altogether;&dquo; since, after Dagenhart, neither Congress nor the states of
destination had &dquo;power to exclude products from other states that are not impure&dquo;
(Currie 1985b: 1123). Finally, the Court compounds its error with a revolutionary paraphrase of the Tenth Amendment- the purported foundation of exclusive
state
powers,
stating that the amendment reserves to the states &dquo;the powers
expressly delegated to the National Government&dquo; (Currie 1985b: 1122). With
this, we have come full circle, for the Dagenhart Court’s reading of the Tenth
Amendment is precisely that of Maryland in the McCulloch case, a reading flatly
rejected by the Marshall Court and the framers themselves.6
The Court’s adoption of the Knight-Dagenhart approach required the
wholesale overthrow of antebellum jurisprudence on the question of the scope
of national authority vis-a-vis the states in commercial regulation cases. In case
one is tempted to believe that dual federalism was instituted out of a belated
concern for states’ rights, it should be noted that, after more than a century
of perfect consistency in the ratio of state acts allowed to those disallowed against
commerce clause challenges (37 percent struck down in the Marshall and Taney
not
percent between 1865 and 1910), the Court struck down 41 percent
of state acts challenged under the commerce clause between 1911 and 1920,
and 51 percent of such acts between 1921 and 1930 (Gavit 1970: 387-537,
eras; 37
541-56).
as
The progressive historical thesis that views the Marshall and Taney Courts
precursive of the &dquo;Nine Old Meri’ must therefore be rejected. Examination
of the
commerce clause cases, far from revealing an unbroken line of developbeginning with the Marshall era and extending through the early twentieth
century, instead reveals abrupt discontinuities. No special protection unauthorized
by the Constitution was afforded property rights under the commerce clause
by the Marshall or Taney Courts; rather, during the entire antebellum period,
the Court regarded property rights to be fully subservient both to national
economic regulation and to state police power
ment
This does not mean that the Marshall and Taney Courts were hostile to
the claims of property, or were &dquo;anti-business&dquo; in any important sense. Both
were friendly to commercial interests, and can be fairly described, in the main,
as &dquo;pro-property&dquo; But to regard the pro-property orientation of Marshall and
Taney as the legal groundwork for the pro-business orientation of the laissezfaire era is to miss crucial differences in the way these orientations became
6
During debate
on
an
to
the language of the Tenth Amendment, "Madison successfully resisted
make
it say that powers not expressly delegated to the United States are
attempt ...
reserved to the states or to the people. No government, he contended, could be limited
to express powers: ’There must necessarily be admitted powers by implication’ " (Mendelson
1980: 148).
874
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
legal doctrine. The jurisprudence of the antebellum Court was
tempered by a healthy respect for established constitutional norms and a
remarkably deferential attitude toward the policy judgments of legislatures. To
attribute the origins of laissez-faire justice to a groundwork laid by Marshall
or Taney is to impart to it a measure of legitimacy it does not deserve
manifest in
REFERENCES
Raoul. 1987. Federalism: The Founders’ Design. Norman: University of
Oklahoma Press.
Brown, Robert E. 1956. Charles A. Beard and the Constitution: A Critical Analysis
of "An Economic Interpretation of the Constitution." Princeton, NJ: Princeton
Berger,
University
Clinton, Robert
University
Press.
Lowry. 1989. Marbury
Press of Kansas.
v.
Madison and Judicial Review. Lawrence:
1990. "Historical Constitutionalism and Judicial Review in America." Policy
Studies Journal 19: 173-91.
Corwin, Edward S. 1950. "The Passing of Dual Federalism." Virginia Law Review 36:
_
.
1-17.
Currie, David
_
P 1985a. "The Constitution in the Supreme Court: The Protection
of Economic Interests, 1889-1910."University of Chicago Law Review 52: 324-88.
1985b. "The Constitution in the Supreme Court: 1910-1912." Duke Law
.
Journal 1985: 1111-62.
Ducat, Craig R., and Harold
W. Chase. 1983. Constitutional
Interpretation, 3rd ed.
Paul, MN: West.
Frankfurter, Felix. 1937. The Commerce Clause under Marshall, Taney, and Waite. Chapel
St.
Hill:
University
of North Carolina Press.
Gavit, Bernard C. 1970. The Commerce Clause of the United States Constitution.
New
York: AMS Press.
Gunther, Gerald R. 1969.
John Marshall’s Defense of McCulloch v. Maryland. Stanford,
CA: Stanford University Press.
Hay, Peter, and Ronald Rotunda. 1982. The United States Federal System. New York:
Oceana.
Kutler, Stanley I., ed. 1972. John Marshall. Englewood Cliffs, NJ: Prentice Hall.
Levy, Leonard W 1988. Original Intent and the Framers’ Constitution. New York: Collier
Macmillian.
MacDonald, Forrest. 1958.
Chicago: University
We the
of
Mendelson, Wallace. 1949.
People: The Economic Origins of the Constitution.
Chicago Press.
"New Light on Fletcher v. Peck and Gibbons v. Ogden"
Yale Law Journal 58: 567-76.
_ . 1980. The American Constitution and the Judicial Process. Homewood, IL:
Dorsey
Press.
_ . 1982. "Was Chief Justice Marshall an Activist?" In Morton Halpern and
Charles Lamb, eds., Supreme Court Activism and Restraint, pp. 57-76. Lexington,
MA: Lexington Books.
875
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
_ . 1985a. "B. F Wright on the Contract Clause: A Progressive Misreading of
the Marshall-Taney Era." Western Political Quarterly 38: 262-75.
1985b. Supreme Court Statecraft: The Rule of Law and Men. Ames: Iowa State
_
.
University
Press.
Miller, Arthur Selwyn. 1968. The Supreme Court and American Capitalism.
New York:
Free Press.
1990. Private Property and the Limits of American Constitutionalism:
The Madisonian Framework and Its Legacy. Chicago: University of Chicago Press.
Newmyer, R. Kent. 1968. The Supreme Court under Marshall and Taney. Chicago, IL:
Harlan Davidson.
Perry, Michael R. 1982. The Constitution, the Courts, and Human Rights: An Inquiry
into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven:
Yale University Press.
Urofsky, Melvin I. 1988. A March of Liberty: A Constitutional History of the United
States. New York: Knopf.
White, G. Edward. 1982. "The Art of Revising History: Revisiting the Marshall Court."
Nedelsky, Jennifer
Suffolk University
Wood,
Law Review 16: 659-85.
Gordon. 1972. The Creation of the American
Republic,
1776-1787. New York:
Norton.
Wright, Benjamin F 1958. Consensus and Continuity, 1776-1787.
University Press.
_ . 1967. The Growth of American Constitutional Law. Chicago:
876
Downloaded from prq.sagepub.com at PENNSYLVANIA STATE UNIV on May 11, 2016
Boston: Boston
Phoenix Books.