*Excerpts from Honors Thesis Section I*
Jarrett P. Dunning
Misunderstanding Marshall: The Jurisprudence of Commerce
Abstract
The Supreme Court’s landmark ruling in Wickard v. Filburn, 317 U.S. 111 (1942) overturned almost
ninety years of legal tradition of Commerce Clause Federalism when it held The Agricultural
Adjustment Act of 1938 was constitutional. By building its legal reasoning upon John Marshall’s
opinion in Gibbons v. Ogden, 22 U.S. 1 (1824), this ruling has, and continues to, raise serious
questions regarding the constitutional legitimacy of congressional regulation of commerce, and of our
constitutional understanding of the concept of commerce more generally. In this paper, I argue that the
majority’s reliance upon John Marshall’s reasoning in Gibbons misconstrues his words by establishing
am idea of Commerce Clause power incongruent with Marshall's principles of constitutional
interpretation. I suggest that Marshall’s reasoning in Gibbons creates a necessary distinction and role
for the local regulation of local activities outside the realm of national commerce, which Wickard
mistakenly fails to recognize.
Introduction
In Wickard v. Filburn, 317 U.S. 111 (1942), legal thinkers, in modern constitutional discourse,
have popularized the landmark case as a “rediscovery” of the lost truth of congressional predominance
over the Commerce Clause power described by John Marshall in his opinion handed down in Gibbons
v. Ogden, 22 U.S. 1 (1824). Justice Jackson, writing his opinion in Wickard, notes that “Chief Justice
Marshall described the federal commerce power with a breath never yet exceeded.”1 Justice Jackson
remarks that the majority of adjudication for nearly a century had been cases that followed a “line
restrict[ing] [congressional] authority” but the changing of the times presented “cases [which] called
forth broader interpretations of the Commerce Clause destined to supersede the earlier ones, and to
bring about a return to the principles first enunciated by Chief Justice Marshall in Gibbons v. Ogden.”2
Wickard essentially granted Congress uncontested authority to exercise exercise its power over
commerce. After Wickard, it was not until United States v. Lopez 514 U.S. 549 (1995) that the Court
considered restricting this power.3 Justice Jackson knew that to justify his deviation from the cases of
1
2
3
Wickard v. Filburn, 317 U.S. 111 (1942).
Ibid at 134.
United States v. Lopez, 514 U.S. 549 (1995). Congress passed legislation prohibiting the possession of a handgun in a
school zone. Congress justified the law through its commerce power by claiming that such possession in a place of
education caused an increase in violence and harmed the earning ability of future economic actors.
United States v. E.C. Knight Co., 156 U.S. 1 (1895) and NLRB v. Jones & Laughlin Steel Corporation,
301 U.S. 1 (1937), which rested upon the premise there exists a form of intrastate commerce
distinguishable from that of an interstate nature, he would need a powerful ally. That ally was Chief
Justice John Marshall.
Thesis Paragraph
In his written opinion, Justice Jackson mistakenly fails to recognize the core principles of John
Marshall's jurisprudence, as he misconstrues Marshall's opinion in Gibbons by introducing a concept of
the Commerce Clause power which would have been foreign to Marshall’s principles of Constitutional
interpretation. Marshall’s principles hold that the intent of the Constitution must prevail; his
interpretation is derived from the written words of the Constitution, and he held that those words
should mirror the intentions of the framers. Essentially, Marshall's jurisprudence is one of balance
between extremes. For Marshall, the purpose of the Commerce Clause was not to be strictly
constructed, for doing so would surely violate the spirit of the Constitution; but by the same note, the
Constitution’s spirit and the Founder's intent held that there exists a recognizable distinction between
interstate and intrastate commerce. After all, it was Marshall's unwillingness in his Gibbons opinion to
consider the commerce power as exclusive to the federal government that developed into the principle
of “dual sovereignty” under the Taney Court.4 Wickard thus stands as an odd phenomenon in the
evolution of Commerce Clause jurisprudence. The history behind the constitutional ruling is important
in understanding the roots of Jackson’s opinion.
The Words of the Gibbons Opinion
Marshall had ample room to further extend Congress's power over commerce, and yet the Chief
Justice declined to rule that the power was exclusive to the federal government. Criticizing Marshall's
decision to deny the exclusivity of congressional power, Justice William Johnson concluded that the
clause regulating foreign commerce was linked with the clause regulating interstate commerce. With
4
Herbert A. Johnson, The Chief Justiceship of John Marshall 1801-1835. (Columbia: University of South Carolina Press,
1997) 256.
the grammatical construction of the Commerce Clause in mind, Johnson held that if the power to
regulate foreign commerce was exclusive then so, too, was federal power over interstate commerce.5
Marshall explicitly rejected the notion that the power Congress has over commerce is a concurrent
power shared with the states, but Gibbons, at the same time, concedes in the third section of the opinion
that federal regulation and the facilitation of interstate commerce was predicated upon powers that were
traditionally held by the original colonies and states. Thus, these powers of the national government
and state would inevitability touch.6 Where Wickard goes awry is in that it completely erodes the
state's distinct role in commerce.
Marshall's Method of Constitutional Interpretation
“Fair Construction,” a phrasing Marshall used to capture his judicial pragmatism, united the
spirit of the law with its letter. As a moderate Justice, Marshall was cautious not to take the black letter
of the law and extend it beyond the bounds of common sense. He maintained that the most desirable
construction was one that held true to the natural understanding of the law's letter, for by doing so its
spirit most often found itself in accordance.7
More pointedly, “Fair Construction” tried to capture the intent behind the legislator's words. He
sought a “medium between that restricted sense which confines the meaning of words to narrower
limits than the common understanding of the world affixes to them, and that extended sense which
would stretch them beyond their obvious import.”8 Marshall applied the same constructive methods to
the Constitution by noting that “the object of language is to communicate the intention of him who
speaks, and the great duty of a judge who construes an instrument is to find the intention of its
makers.”9 Indeed, Marshall discusses the Constitutional Convention and the Founding Fathers in his
5
6
7
8
9
Johnson, The Chief Justiceship of John Marshall, 167-168.
Johnson, Gibbons v. Ogden, 116-117
Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence, Kansas: University Press
of Kansas, 1996) 192-194
John Marshall, John Marshall's Defense of McCulloch V. Maryland, ed. Gerald Gunther (Stanford: Stanford University
Press, 1969) 92.
Ibid., 168.
Gibbons opinion rather frequently when trying to discern the meaning of commerce in relation to
navigation; he notes that “all America understands, and has uniformly understood, the word
'commerce,' to comprehend navigation. It was so understood, and must have been so understood, when
the constitution was framed.” Thus, Marshall's understanding of what commerce was and was not is
intricately linked to the manner in which the Founding Fathers understood commerce.
Conclusion
Laurence Tribe quotes Justice Holmes as saying that “[a word] may vary greatly in color and
content according to the circumstances and the time in which it is used.” He suggest “a fourth
dimension to the skin we pull taunt over word-points in the Constitution: time.”10 One hundred and
eighteen years of time is what principally stands between Gibbons and Wickard. State, national, and
international economies were profoundly altered in the intervening years. Tribe identifies two ends of
Constitutional history: on one end is the pull of precedent and reverence to the past and at the other end
is the pull of time and the future evolution of the United States. Both of these ends serve to balance and
create stability in the American republic. Wickard, in this sense, shifts that balance and places the
Constitution and the precedents established concerning the meaning of commerce in a precarious
situation.
Yet, the Court may still be turning towards re-establishing a more balanced approach to
regulating commerce. For example, Chief Justice Roberts in NFIB v. Sebelius 567 U.S. (2012)
declined to rule whether Congress had the authority to pass the individual mandate of the Affordable
Care Act was rooted within the power to regulate commerce. The Court may be beginning to shy
away from uncontested Congressional authority over commerce, for Justice Roberts arguably identified
the dangers of allowing Congress to regulate inactivity in a market. If the Court does begin to reign in
the Congressional power unleashed by Wickard, it will find itself making a “return to the principles first
enunciated by Chief Justice Marshall in Gibbons v. Ogden.”11
10 Lawrence Tribe, The Invisible Constitution (Oxford: Oxford University Press, 2008) 164.
11 Wickard v. Filburn at 134.
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