Wickard

[Ilya Somin]

I think that some of the previous posts may have misinterpreted Gibbons.
Marshall was saying that "commerce" is a form of "intercourse," but not
that ALL intercourse is therefore commerce. In the opinion, he uses
intercourse interchangeably with "commercial intercourse," which implies
that he means that the Commerce Power extends only to a subset of all
intercourse, the subset that can be considered "commercial." Here is the
passage from the opinion which discusses the link between commerce and
intercourse:

The counsel for the appellee would limit it to traffic, to buying and
selling, or the interchange of commodities, and do not admit that it
comprehends navigation. This would restrict a general term, applicable to
many objects, to one of its significations. Commerce, undoubtedly, is
traffic, but it is something more: it is intercourse. It describes the commercial
intercourse between nations, and parts of nations, in all its branches,
and is regulated by prescribing rules for carrying on that intercourse.
The mind can scarcely conceive a system for regulating commerce between
nations, which shall exclude all laws concerning navigation, which shall
be silent on the admission of the vessels of the one nation into the ports
of the other, and be confined to prescribing rules for the conduct of
individuals, in the actual employment of buying and selling, or of barter.

Gibbons v. Ogden, 22 U.S. (9 Wheat.)  1, 189-90 (1824).

Marshall was trying to refute counsel's argument that commerce included
only the actual buying and selling of goods and not also the movement of
those goods through "navigation." However, he was not saying that all
"intercourse" is "commerce," only that the term "commerce" is broad enough
to encompass the movement of goods through navigation and not just the
actual buying and selling of goods ("the actual employment of buying
and selling, or of barter," as Marshall puts it).

Here is another quote from the opinion, which shows that Marshall had a
narrow view of the commerce Power (by modern standards). Here, he claims
that the commerce does not extend to inspection laws because such laws
act on goods only "before" they enter the stream of commerce:

But, the inspection laws are said to be regulations of commerce, and are
certainly recognised in the constitution, as being passed in the exercise
of a power remaining with the States. That inspection laws may have a
remote and considerable influence on commerce, will not be denied; but
that a power to regulate commerce is the source from which the right to
pass them is derived, cannot be admitted.  The object of inspection laws,
is to improve the quality of articles produced by the labour of a country;
to fit them for exportation; or, it may be, for domestic use. They act
upon the subject before it becomes an article of foreign commerce, or of
commerce among the States, and prepare it for that purpose. They form a
portion of that immense mass of legislation, which embraces every thing
within the territory of a State, not surrendered to the general
government: all which can be most advantageously exercised by the States
themselves. Inspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal commerce of a
State, and those which respect turnpike roads, ferries, &c., are component
parts of this mass. Id. at 203.

Notice, that, among other things, Marshall rejects the "effects test" that
underpins much of the post-New Deal jurisprudence. He recognizes that
"inspection laws may have a remote and considerable influence on commerce"
but still concludes that the claim that "a power to regulate commerce is
the source from which the right to pass them is derived, cannot be
admitted."

Like Sandy,  I agree that Marshall is a highly imperfect guide to original
intent. David Currie's book The Constitution in the Supreme Court, the
First 100 Years documents many questionable interpretations that Marshall
made (at least they are questionable on originalist and textualist
grounds). However, to the extent that Marshall's Gibbons opinion should be
considered dispositive, it doesn't seem to justify the vastly expansive
post-New Deal view of the Commerce Clause, and even seems to argue for the
opposite.

On Fri, 15 Nov 2002, Sanford Levinson wrote:

> Marshall is always useful, of course, though I'm not clear that an 1824
> opinion by a highly ideological judge should be taken as dispositive about
> the audience meaning of "commerce" some 35 years earlier. And it can't be
> denied, as Epstein and Thomas have argued, that much 18th century writers
> believed they were referring to separate phenomena when they used the words
> "commerce," "navigation," "agriculture," and "manufacturing."  This is
> certainly true of much of Madison's own writing.
>
> sandy
>