Turning then to the Constitution, Marshall asks, “What is commerce?” “Counsel for appellee,” he recites, “would limit it to traffic, to buying and selling,” to which he answers that “this would restrict a general term … to one of its significations. Commerce,” he continues, “undoubtedly is traffic, but it is something more—it is intercourse,” and so includes navigation. And what is the power of Congress over commerce? “It is the power to regulate, that is, the power to prescribe the rule by which commerce is to be governed.” It is a power “complete in itself,” exercisable “at its utmost extent,” and without limitations “other than are prescribed by the Constitution.… If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of power as are found in the Constitution of the United States.” The power, therefore, is not to be confined by state lines but acts upon its subject-matter wherever it is to be found. “It may, of consequence, pass the jurisdictional line of New York and act upon the very waters to which the prohibition now under consideration applies.” It is a power to be exercised within the States and not merely at their frontiers.
But was it sufficient for Marshall merely to define the power of Congress? Must not the power of the State also be considered? At least, Ogden’s attorneys had argued, the mere existence in Congress of the power to regulate commerce among the States did not prevent New York from exercising the same power, through legislation operating upon subject matter within its own boundaries. No doubt, he concedes, the States have the right to enact many kinds of laws which will incidentally affect commerce among the States, such for instance as quarantine and health laws, laws regulating bridges and ferries, and so on; but this they do by virtue of their power of “internal police,” not by virtue of a “concurrent” power over commerce, foreign and interstate. And, indeed, New York may have granted Fulton and Livingston their monopoly in exercise of this power, in which case its validity would depend upon its not conflicting with an Act of Congress regulating commerce. For should such conflict exist, the State enactment, though passed “in the exercise of its acknowledged sovereignty,” must give place in consequence of the supremacy conferred by the Constitution upon all acts of Congress in pursuance of it, over all state laws whatsoever.
The opinion then proceeds to the consideration of the Act of Congress relied upon by Gibbons. This, Ogden’s attorneys contended, merely conferred the American character upon vessels already possessed of the right to engage in the coasting trade; Marshall, on the contrary, held that it conferred the right itself, together with the auxiliary right of navigating the waters of the United States; whence it followed that New York was powerless to exclude Gibbons’s vessels from the Hudson. Incidentally Marshall indicated his opinion that Congress’s power extended to the carriage of passengers as well as of goods and to vessels propelled by steam as well as to those driven by wind. “The one element,” said he, “may be as legitimately used as the other for every commercial purpose authorized by the laws of the Union.”
Two years later, in the case of Brown vs. Maryland, ¹ Marshall laid down his famous doctrine that so long as goods introduced into a State in the course of foreign trade remain in the hands of the importer and in the original package, they are not subject to taxation by the State. This doctrine is interesting for two reasons. In the first place, it implies the further principle that an attempt by a State to tax interstate or foreign commerce is tantamount to an attempt to regulate such commerce, and is consequently void. In other words, the principle of the exclusiveness of Congress’s power to regulate commerce among the States and with foreign nations, which is advanced by way of dictum in Gibbons vs. Ogden, becomes in Brown vs. Maryland a ground of decision. It is a principle which has proved of the utmost importance in keeping the field of national power clear of encumbering state legislation against the day when Congress should elect to step in and assume effective control. Nor can there be much doubt that the result was intended by the framers of the Constitution.
In the second place, however, from another point of view this “original package doctrine” is only an extension of the immunity from state taxation established in M’Culloch vs. Maryland for instrumentalities of the National Government. It thus reflects the principle implied by that decision: where power exists to any degree or for any purpose, it exists to every degree and for every purpose; or, to quote Marshall’s own words in Brown vs. Maryland, “questions of power do not depend upon the degree to which it may be exercised; if it may be exercised at all, it may be exercised at the will of those in whose hands it is placed.” The attitude of the Court nowadays, when it has to deal with state legislation, is very different. It takes the position that abuse of power, in relation to private rights or to commerce, is excess of power and hence demands to be shown the substantial effect of legislation, not its mere formal justification. ¹ In short, its inquiry is into facts. On the other hand, when dealing with congressional legislation, the Court has hitherto always followed Marshall’s bolder method. Thus Congress may use its taxing power to drive out unwholesome businesses, perhaps even to regulate labor within the States, and it may close the channels of interstate and foreign commerce to articles deemed by it injurious to the public health or morals. ² To date this discrepancy between the methods employed by the Court in passing upon the validity of legislation within the two fields of state and national power has afforded the latter a decided advantage.
¹ See Justice Bradley’s language in 122 U. S., 326; also the more recent case of Western Union Telegraph Company vs. Kan., 216 U. S., 1.
² See 195 U. S., 27; 188 U. S., 321; 227 U. S., 308. Cf. 247 U. S., 251.
The great principles which Marshall developed in his interpretation of the Constitution from the side of national power and which after various ups and downs may be reckoned as part of the law of the land today, were the following:
1. The Constitution is an ordinance of the people of the United States, and not a compact of States.
2. Consequently it is to be interpreted with a view to securing a beneficial use of the powers which it creates, not with the purpose of safeguarding the prerogatives of state sovereignty.