Virginia v. Sebelius
rs at robertsheridan.com
Tue Dec 14 08:47:52 PST 2010
Okay, thank you; then what was the economic importance of Gibbon? How much broader was commerce after the decision than before as a result of Gibbon? And haven't we gotten away from the notion that there is a before and after cut-off point regarding articles that are now regarded as being in the stream of commerce but were previously considered to be relegated to, and protected by, the notion that they were merely "local" mining and manufacturing and thus not subject to regulation by Congress because they were not sufficiently involved in interstate or foreign commerce?
What did Marshall do, in Gibbon, to the notion of commerce that was, allegedly, so beneficial to the development of the nation? Was it just the fact that he'd busted the trust, meaning the monopoly franchise issued to Livingston by the State of New York?
Vanderbilt's great objection, one of the things that made him so radical a rebel, according to Stiles, was that he felt that government had entered the market on the side of Livingston and his ilk to favor them economically with the monopoly franchise right to ferry on the Hudson to the exclusion of seeming upstarts like himself. The objection to this common practice indicated a movement away from the dominance of commerce by the so-called patrician class which enjoyed the political connections necessary to obtain these monopolies over lucrative business opportunities in a time when to acquire a corporate charter for private business one had to approach one's friends in the legislature and the governor's office for a limited charter subject to the need to renew after awhile, giving the politicians continuing power, if not a death grip, on private business of any size.
Vanderbilt's attitude, according to Stiles, made him emblematic of an independent attitude shared by Andrew Jackson and many of this president's followers, especially regarding Biddle's bank in Philadelphia, which enjoyed government support, being the Second B.U.S. This attitude helped to provoke and maintain the famous 'Bank War' by which Jackson, ably aided by his A-G, Roger B.Taney, later CJ, killed the bank by refusing to renew its term-limited charter and withdrawing federal funds in favor of local "pet" banks.
This strikes me as being somewhat similar to the attitudes that some of us have regarding the love we share for bankers today in light of their valuable assistance to the economy leading up to 2008, followed by the bailout and huge bonuses we all admire so much since. The Age of Jackson means, for one thing, opposition to a world that favored the Patrician Class of would-be aristocrats in democratic America, a contradiction in terms.
As Stiles shows, the Age of Deference to one's betters was vigorously attacked by the likes of Jackson and Vanderbilt, who took on the Livingston interests and fought them to a standstill by undercutting their fares and engaging in a ramming and shooting war on the river.
Didn't Gibbon contribute to the demise of the age deference in part by expanding the notion of commerce as well as busting the monopoly?
Wasn't it viewed at the time as a monopoly, meaning anti-monopoly case?
On Dec 13, 2010, at 10:38 PM, Ilya Somin wrote:
> Two brief points:
> 1. Ferrying people across state lines for pay is pretty obviously "commerce" not only in 1829 but in 1787 and at any other time in the history of the usage the word in English.
> 2. Marshall most assuredly did NOT give the word "commerce" its "broadest possible connotation." To the contrary, he emphasized that many economic regulations fall outside Congress' authority under the Clause. Consider, for example, this passage, where he lists "Inspection laws, quarantine laws, [and] health laws of every description" as among those regulations that fall outside the scope of Congress' commerce power. The reference to "health laws of very description" is ironic in light of the fact that various people today try to cite Gibbons in support of the individual mandate:
> "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."
> Ilya Somin
> Associate Professor of Law
> Editor, Supreme Court Economic Review
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8124
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
> Could be wrong, but in stuff I've read about Gibbon v. Ogden, the great value of what Marshall did in deciding that ferrying humans up, down, and across the Hudson River in when was it, 1819, was to make clear that although such ferrying might not have been commerce yesterday, it was today, thus giving federal control over the interstate river to Congress, not the monopolizing State of New York, which had purported to grant monopoly rights to such ferrying to the patrician class, represented in this case by the well-connected Robert (?) Livingston and his designees which included Robert Fulton.
> This ruling opened the river to Gibbons's employee, the young Cornelius Vanderbilt, later "Commodore," who went out on his own to become the Steamboat Willie of his day, the first so-called Robber Baron. In those days, laissez faire capitalism was radical liberal. Today it is merely reactionary conservative Republican. Vanderbilt parlayed river transportation between NYC and America's largest city at the time (pre-Erie Canal), Philadelphia, and then to Boston and taking off from there into bigger things. It seems he need a railway to get his ferry passengers departing NYC from the Massachusetts pier on Long Island Sound up to Boston proper. That's how he got into railroads, later owning the NY Central and a list of others.
> So it doesn't make a whit of difference that scholars today might take quarrel with John Marshall's verbal usage. He was Chief Justice at the time, not any of us. Plus he had the votes. His decision was taken at the time, and following, as giving the broadest possible connotation to the word "commerce."
> This famous Steamboat Case is one of a handful that are said to have made the corporate form of capital formation and business protection so attractive as the business form of choice as the United States was developing into the economic powerhouse it became after the Civil War which required lots of rail transport, steel production, communication wires, etc. Dartmouth College case is another. Charles River Bridge is another but somehow Taney comes to mind rather than Marshall on this.
> See Jean Edward Smith's biography of John Marshall and T.J. Stiles's recent Pulitzer prize-winning biography of Vanderbilt, called The First Tycoon.
> My question for Jon and his 19th, or perhaps 18th century, philosophy is:
> What do you think Marbury v. Madison (1803) means?
> Do you disagree with its holding that arrogates a certain power to the Court, called 'judicial review?'
> And that this gives its holdings in constitutional cases the force of constitutional law?
> Who's your choice for Chief Justice, come the revolution? Please don't say Sarah Palin; that's too easy. :D
> On Dec 13, 2010, at 8:33 PM, Jon Roland wrote:
>> On 12/13/2010 07:07 PM, Ilya Somin wrote:
>>> Regarding C.J. Marshall, he made clear in Gibbons that the Commerce Clause is limited in scope, and even emphasized that it doesn't cover many laws that we would today consider clearly "economic" (e.g. - inspection laws).
>> In my search for the word "commerce" in founding era documentation, I found very few instances of usage in British North America or the newly independent states. The main evidentiary material were the many price report newspapers of the time, that quoted current trading prices for various items. However, I found only four uses of the word "commerce" in them, and all referred to the items for which prices were being quoted. All of those were tangible commodities.
>> The word "commerce" is French. It appears the main source for its use by the Framers was Emmerich de Vattel, The Law of Nations (1758), Book I § 92:
>> ... commerce consists in mutually buying and selling all sorts of commodities.
>> Therefore, "commerce" does not extend to transport of people or cargo not part of a sale, nor to services, information, extraction such as mining, farming, hunting, or fishing, to manufacturing, to possession, use, or disposal. Only to transfers of title and possession. It does not extend to those engaged in trade or their practices, and certainly not to those things that have a "substantial effect" on commerce. This last, of course, does not come from interpretation of "commerce", but from interpretation of "necessary and proper", and that was only incidental administrative powers necessary to make a certain kind of effort, not whatever might be convenient to achieve a desired outcome.
>> Phrases expressing a purpose are, in general, definitions of what might be called consequential and procedural jurisdiction, which are further restrictions on powers for a reasonable legitimate ("proper") purpose and in a proper manner.
>> -- Jon
>> Constitution Society http://constitution.org
>> 2900 W Anderson Ln C-200-322 Austin, TX 78757
>> 512/299-5001 jon.roland at constitution.org
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