Wickard and Gibbons

Barksdale, Yvette 7barksda at JMLS.EDU
Fri Nov 15 15:02:14 PST 2002

When I was preparing my Gibbons discussion this year, I decided to look into
a little this 1787 coastal act - that was at issue in the case that required
a federal license for the coastal trade. (Don't ask me why - i got a bee in
by bonnet over this, for some strange reason)

Appararently, this particular coastal act requiring a federal license for
the coastal was clearly in the contemplation of the framers as a federal
statute, because the american vessels were under heavy competition from
foreign vessels for the coastal trade (Atlantic oceans ).

Accordingly, as i understand it, there was not much doubt that the national
commerce power included the power to regulate the coastal trade generally
(despite the self-serving of litigation counsel), and thus extended to
"navigation" .

The real issue in Gibbons - was 1) whether the statute extended to the ferry
route  between Elizabeth Town New Jersey and  New York (which, as far as I
could see from a contemporary map, would have gone through long island
sound,  a body of water which  connected to atlantic ocean, but largely
within state waters.)  2) Whether or not the statute was intended to preempt
state regulation of navigation within their own waters, as opposed to simply
requiring vessels who were within those waters, if covered by the statute,
to have an American license, 3) If so, was this regulation of interstate or
intrastate commerce.

Thus, I don't think it is at all true that the framers did not contemplate
that federal regulation of interstate commerce would include regulation over
navigation, (and other matters which were the infrastructure for interstate
commerce), since navigation problems were some of the commercial problems
which were vexing the articles of confederation government.

IF I'm wrong on this history, please let me know.


Professor Yvette M. Barksdale
Associate Professor of Law
The  John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737
(email:)  7barksda at jmls.edu

> ----------
> From:         Sanford Levinson[SMTP:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Reply To:     Discussion list for con law professors
> Sent:         Friday, November 15, 2002 1:44 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Wickard
> 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

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