 the several states. It does not, however, define that power in detail or specify how it is to be exercised. What is meant by the term commerce? How much power over it has the federal government? And how much power the individual states? The issue involves the economic welfare of the United States, but it also involves the balance of power between the federal government and the government of the states. It is therefore clearly an issue of the utmost complexity and importance. The Supreme Court in 1824 provided an answer within the framework of a case known as Gibbons versus Ogden, or more simply, the steamboat case. It has been hailed as the Emancipation Proclamation of American Commerce. The origins of Gibbons versus Ogden go back to October of 1818 when members of the New York Constabulary board the steamboat Bologna. You're going to do what, Constable? Are you the captain of the Bologna? That's right. For captain, I'm here to seize your ship. You're going mad, Constable. Let's throw him off, boys. See this crowbar, my worthy? I'm going to ram it up your nose if you're not off this ship in three seconds. If you so much as raise a hand against me or my men, Sonny, I'll clap you in irons. Well, eh, will you? Stop it, then. Stop it, you hear? Stand back, you rascals. Pipe down, mate, for I'll clap you in irons. Now, what's this about seizing my ship? The suit has been brought against the honor of this ship, Captain, for unlawfully navigating a steamboat in New York waters. That's a court order authorizing me to impound the Bologna. What do you mean unlawfully operating a steamboat? You haven't got a license, Captain. This is a New Jersey ship, Constable, operating under a federal license. Sorry, Captain, it isn't worth the paper it's written on. Either you have a license from Livingston and Fulton, or you have no license at all. That's New York law. Damn it, Constable. I've got a license to navigate in all coastal waters of the United States. Are these United States waters or aren't they? They're the waters of the sovereign state of New York, Captain, and nobody's got jurisdiction of them except the state of New York. Next, the battle moved into the courts. In 1820, it was first docketed in the Supreme Court of the United States, fully four years before arguments were actually heard in the case. The Supreme Court then consisted of seven men, Chief Justice Marshall, Justice Todd, Justice DuVal, Justice Washington, Justice Livingston, Justice Story, and Justice Johnson. Will you tell us the facts, Mr. Washington? There is follows. The New York Steamboat Act, passed in 1789, requires that anyone operating a steamboat in New York waters buy a license from the firm of Livingston and Fulton. Aaron Ogden and Thomas Gibbons both operate steamboats between New York and the Jersey Shore. Ogden has a license from Livingston and Fulton. Gibbons does not. Gibbons says he doesn't need one. His ships are licensed for the coasting trade by the Federal Coasting Act, which he says entitles him to navigate New York waters. Ogden has sued Gibbons with the view of putting him out of business. The New York courts have held him. Gibbons is appealing now. Look not thou upon the wine when it is red. At the last it bite it like a serpent. The Federal Coasting Act. Would you illuminate it for us, Mr. Story? It entitles Gibbons, and I quote, to all the privileges of American ships employed in the coasting trade. Now what does that mean? Can he navigate not just between port and port of one state, but also between the port of one state and the port of another? There's no mention of state lines, Mr. Chief Justice. I should think, under the circumstances, the term coasting trade covers navigation in all coastal waters of America. Well if that be the case, New York steamboat law clearly interferes with the Federal Coasting Act. In my opinion, federal law prevails under Article 6 of the Constitution, which says that federal law supersedes state law. If, if, Mr. Marshall, the federal law has been enacted in pursuance of the powers vested in Congress by the Constitution. There's the rub, Mr. Marshall. New York claims that the steamboat law is a regulation of purely internal traffic, and that the federal government has no constitutional power whatever in that area. There's the rub indeed. Congress has not been given power to legislate on internal navigation. Navigation in the internal waters of the several states. That power has never been surrendered to the federal government. The Federal Coasting Act, gentlemen, is unconstitutional. I'm not quite prepared to accept it as a fact, Mr. DeVal, that an individual state, intentionally or unintentionally, may block commerce between the states. To do so would be to abandon the very idea of a union. The law, in this case, Mr. Chief Justice, from the law in this case, Mr. DeVal assuredly must conform to the letter and the spirit of the Constitution. To the letter and to the spirit. A Pluribus Unum. The Constitution was designed for the purpose of forming a more perfect union. Now, clearly, that objective can't be achieved without the free and unrestricted use of our national roads and waterways. There are state powers which have not been surrendered to the federal government. I don't deny it. But I am not very kindly disposed towards state power with respect to commerce, traffic, transportation, navigation. It was excessive state power in that area that brought us to the brink of disaster before during our war for independence and in the years which followed it. I've seen men starve for the lack of a strong hand to check the state's greed and stubbornness, Mr. DeVal. I wouldn't wish to see us give them their head in this matter now. Hear, hear. In the following summer, events occurred which were to link the steamboat case with a seemingly unrelated issue, slavery. Charleston, South Carolina, for the first time, faced the threat of a slave uprising. Charleston blacks, under the leadership of a free Negro seaman, Denmark Visi, had planned to seize control of the town. The plan failed. Informants gave the rebels away and malicious stepped in before they were ready to strike. South Carolina reacted sharply, nevertheless. She hanged the insurgents and she passed a law which barred free Negroes like Denmark Visi from entering the state. It was called the Negro Seaman Act. In August of 1823, Supreme Court Justice William Johnson, presiding judge of the federal court for South Carolina, declared the Negro Seaman Act unconstitutional. The law barred free Americans from crossing state borders. Now to accept it is valid. To borrow your words, Mr. Chief Justice would have been to abandon the very idea of a union. Nothing could be more true. What was your argument, Mr. Johnson? I said that the law was, in effect, a regulation of interstate commerce. Now that's a subject on which, under the Constitution, Congress and Congress only can legislate. The states, South Carolina in particular, cannot. The Negro Seaman Act was therefore unconstitutional. Very effective. But not very persuasive. Congress has power over interstate commerce, yes, but not exclusive power. Perish the thought. How did they take it, Mr. Johnson? You will not like the answer to that, Mr. Chief Justice. I was accused of being blind or mad. Possibly both. If this be the Constitution, they shout it into my ears. It would be better to break the instrument and submit to its principles. I'm not surprised. The attorney who argued on behalf of the Seaman's Act was perfectly candid on the subject. South Carolina, he said, considers it the right to control her black population as a matter of self-preservation. Rather than surrender this right, prefer to see the dissolution of the union. And they applauded him. They applauded him. I had no idea that feeling of this kind had grown to be so strong. We will soon be hearing arguments in the steamboat case. The South Carolina business, in my opinion, has turned this situation into a potential powder keg. How so? The South will claim that state power to keep Gibbon's steamboats out of New York and state power to keep Denmark VCs from crossing their borders are one and the same thing. You suggested that we curb state power over commerce, Mr. Marshall. We'll do so at our peril, I'm afraid. Let the Supreme Court find for Gibbons. And we may well see one half of this country rise against the other. The link between federal power over commerce and slavery to southern leaders was obvious. Federal power over commerce, they felt, meant federal power over the slave trade. Slaves, after all, were property. Federal power over the slave trade, in turn, meant federal power to set the slaves free. To that, the South would resist, if necessary, by force of arms. The man who said so, plainly, was John Randolph of Roanoke, longtime friend of Chief Justice Marshall and fellow Virginian. Even while the steamboat case was getting underway, Congress debated a bill for a national system of roads and canals. Among the men fighting that bill was John Randolph. The Constitution treats slaves as articles of commerce. Ergo, if the federal government, under the pretext of regulating commerce between the states, can build roads and canals through our very backyard, the federal government, under the same pretext, can regulate our slave trade. The next step is the emancipation of every slave in this union. Yes, I do. The day will come. The day will come. Consider what you're doing, gentlemen. Consider it well. Consider the colossal power with which the federal government is now being armed. The day will come, gentlemen, if this bill passes. When the Congress will usurp the right, the legislative subject of slavery. And on that day, gentlemen, on that day, this nation will be thrown into revolution. The hearing of arguments in Gibbons versus Ogden before the Supreme Court of the United States began on February 4, 1824. Thomas Emmett, counsel for Ogden, opened it. The power of the state to regulate their internal traffic and trade, your honors, has never been ceded by them to the federal government. They may rightfully claim it, therefore, under our Constitution. They may rightfully enact laws with respect to turnpikes, toll bridges, stage lines, ferries over navigable rivers and lakes, or with respect to the use of the steam engine in their waters. It has been argued that state laws of this kind affect commerce between the states. That is a fact. I don't deny it. We maintain, however, that Congress has not the power under the Constitution to interfere with them. Congress has power to regulate commerce between the states, granted. But this power, your honors, cannot be said to extend to the regulation of navigation within the states. Navigation in waters over which the states, under the Constitution, have absolute authority. It's absurd. Can you imagine the web of regulations and restrictions we should have forced upon us? Locks and chains in every canal. Taxes and tolls at every state line. As the steamboat's concerned, Fulton might just as well not have invented the darn thing. The Chief Justice was quite right. Give the states their head in this matter and it will be dog eat dog. The devil take the hind most. What can't be cured must be endured. Daniel Webster argued on behalf of Thomas Givens. Webster was a New England man and one of the nation's leading constitutional lawyers. Congress, the Constitution says, has the power to regulate commerce. What is this commerce that it talks about? The commerce of the individual states in their severality? No, gentlemen. What the Constitution refers to is the commerce of the United States. An indivisible unit, defined by the words on the flag that flies over us. A pluribus unum. A pluribus unum. The very objective of the Constitution was to benefit and improve trade between the states. Our history books show it. And how was this great objective to be achieved? By taking the power over commerce, out of the hands of many, and placing it in the hands of one. Congress, can New York grant a monopoly of trade? Can she shut her ports to all but her own citizens? Can she refuse admission to ships of a particular nation, a state? She can do none of these things. Congress and Congress only. May legislate with respect to commerce between the states. There is no power left in the states with which to legislate on this subject. The argument's perfect. Perfect, Mr. Johnson? A total and sweeping abrogation of state power? You call that perfect? On his way home on February 7, 1824, the chief just as fell heavily, dislocating his shoulder. For the remainder of the hearings, he was to remain at home. I like the argument. I object to it. The New York Steamboat Law is a nuisance. Who can deny it? But the sweeping destruction of state rights which Webster proposes, that's too high a price to pay to get rid of it. Why? Two reasons, Mr. Johnson. First, state rights or state liberty. They're more. They are the bulwark of individual and personal freedom. Once they're gone, what is to keep the federal government from growing into an all-powerful monster? That's an argument I'm heartily tired of, Mr. DeVal. It's like old cheese. Every time it's served up, it's a little softer and a little smellier. So you're tired of my first argument, Mr. Johnson? Well then, let me hear you respond to my second. Congress power over commerce is exclusive. The states have no power over it, whatever. So you argued when you declared that South Carolina law unconstitutional. And what happened? South Carolina defied you. Our duty, Mr. DeVal, is to determine what the law is in this case. The matter of its enforcement is none of our concern. I find that a most callous attitude, sir. Could it be that uppermost in your mind is the wish that this court vindicate you for having blundered down there? I object, sir. I object. Mr. Marshall, a man is indifferent to the preservation of the Union as Mr. DeVal is hardly qualified to... Gentlemen, gentlemen, please. I can't believe it. The South equates state power over commerce with state power over slavery. Threatens to dissolve the Union rather than surrender that power. And yet, I hear it proposed that we side with Webster. Gentlemen, do you wish to be held responsible for a civil war? Revolution, Randolph. Rebellion, yes. Rebellion? Well, whatever you care to call it, we must defend our rights. By force of arms? If necessary. The other day, my grandson came running into the room shouting, Grampa, Grampa, there's a thousand big dogs fighting in our backyard. I looked at him, sternly. He said, how many dogs? Oh, damn your stories, Marshall. You think I'm exaggerating, don't you? I do. Well, you're wrong, Marshall. Take my warning. If this bill passes, it will merely be a question of time before those of us who are unfortunate enough to be or who have been born slaveholders must perish or go for the sword. There'll be no need for the sword, Randolph. We have a constitution we can turn to. To protect us? The Constitution will do nothing for us. I don't give a fig for the Constitution. Sir, I have been brought by experience and especially by recent observations to the conclusion at which a man of sense and reflection might have arrived at our priori, that all the mechanics under the sun, Constitution makers, least understand their trade. Randolph, Randolph. I assure you, Marshall, that we have it in our own hands. If we are to save ourselves, we must combine to resist and do it now and do it effectively. Randolph, I detect the smell of treason in this room. Treason? Against what cause? The Federal Union. I owe allegiance to Virginia first. I am not ashamed to say it. Virginia, the state gave me birth. Me and you. We were born Virginian to be Americans. I hope you don't really believe that. I do believe it, but all my heart. Well, and good, Marshall. I respect your feelings. But I don't really believe that you understand mine. The loss of our blacks will ruin us, to be sure. Yet we can survive that. We will not survive their presence among us, free and unchecked. They'll murder us, Marshall. It almost happened in Charleston, Denmark, V.C. Do you remember that name? It was close call, Marshall. Sheer luck prevented South Carolina from suffering the same fate as Santa Domingo. Ask us to free our slaves, and the South will run red with the blood of its white population. Yes, Mr. Johnson. Protect the nation's commerce, but not by destroying state power, not by destroying it, by merely curbing it, making certain that it can't be used to the detriment of the nation's welfare. I shall expect to see you walk on water, Mr. Marshall. We're not in need of a miracle, Mr. Washington. We're in need of simple definition. A definition? A definition, yes. An interpretation of the term commerce between the states. Under the Constitution. What is Congress in power to regulate? We've been over that before. Taxes, duties. Let's broaden that a bit, Mr. Duval. Buying and selling. The exchange of goods. I'll accept that, Mr. Story. The exchange of goods. But that entails moving them, doesn't it? From one town to the next. From one state to another. Now, gentlemen, can the federal government regulate the exchange of goods? That is to say their movement between the states. Without having the power to regulate the use of the vehicles by which they're moved? While they're being moved along the nation's roads and waterways? No, obviously not. I agree. The power of regulating commerce between the states as granted by the Constitution must of necessity carry with it the power to regulate transportation. Navigation. Traffic. Within the states? Within the states, yes. The movement of goods between two states begins and terminates within the states involved, doesn't it? Now goods moving between states which have no common border must pass through a third. Or a fourth, doesn't it? Where are you leading us, Mr. Marshall? To safe ground, I hope. Consider, Mr. DeVal. When I suggested that the Federal Coasting Act superseded the New York Steamboat Law, you replied that this could not be. The Coasting Act, you said, was unconstitutional because Congress had not the power to legislate with respect to navigation in the internal waters of the several states. Now, if we say, as I propose we do, that the power of Congress to regulate commerce between the states as granted by the Constitution implies the power to regulate navigation, as well as navigation between and within the states, then the Federal Coasting Act is in fact constitutional. And if it is constitutional, then clearly it supersedes the New York Steamboat Law. Under Article 6 of the Constitution. Excellent. The Steamboat Law falls. It falls, yes. But not because we're questioning New York's right to pass it in the first place. It falls because it happens to be in conflict with federal legislation. Hats work, gentlemen. Hats work. We have not come to grips with the basic issue. As a matter of fact, we should be giving the states license to go on legislating. We're not destroying state power over commerce. No, Mr. Johnson. But we are curbing it. To be sure, the implications are clear. We're providing the means to overturn not only the Steamboat Law, but any law like it. To be understood, I'm certain that we're placing in the hands of Congress full control over navigation, transportation, traffic, and so give meaning to the commerce clause. Without destroying the South's power to legislate with respect to the matter she considers vital to her survival. Slavery. The day may come, of course, and Congress may want to act on that subject. The day will come, Mr. Marshall. The day will come when there will be no room left for compromise. Southern congressmen will have their fair say. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be... On March 2nd, 1824, John Marshall delivered the Supreme Court's opinion in Gibbons v. Stockton. The court held that New York could not exclude the Steamboat Ballooner from New York Waters because she was not licensed by Livingston and Fulton as required by the New York Steamboat Law. The decision was unanimous, though Justice Johnson filed a separate opinion. Marshall neither destroyed state power over commerce, nor did he permit it unchecked to interfere with the nation's growth and welfare. Thus, he protected the vital interests of the North and West and reassured the South. The South would go on legislating on the subject of slavery until the issue was decided on the battlefield. The court's decision turned on Marshall's interpretation of the term commerce between the states and of Congress' power to regulate it. What Marshall said was this, commerce is not just buying and selling. It encompasses navigation, transportation. It encompasses, in fact, every kind of commercial intercourse between the states. Under the Constitution, he said, it is up to Congress to determine the rules for carrying on that intercourse. State laws, therefore, such as the Steamboat Law, if they are in conflict with federal law, such as the Coasting Act, must fall. This placed into the hands of the federal government not just the use of America's waterways by the Steamboat, but the control of all the instruments and systems of commerce which were soon to propel America into the role of world power, the railroad, the telegraph, the oil and gas pipes, the interstate highways, the airplane. The Supreme Court thus laid the foundations for a common market in the United States, a century and a half before Europe enjoyed it. Its decision in Gibbons versus Ogden has been hailed as the emancipation proclamation of American commerce. There's no less than that.