Gibbons v. Ogden, Law, and Society in the Early Republic

8: Strategies and Deliberations

CHAPTER 8 Strategies and Deliberations The Rise of the Marshall Court O J , , Supreme Court justice Joseph Story wrote his colleague Brockholst Livingston, stating that it was a “matter of regret to me that the constitutionality of the Act of New York is about to come before the Supreme Court.” The Supreme Court’s reputation had already been maligned by states’ rights supporters for the justices’ nationalistic decisions in the recent cases of McCulloch v. Maryland () and Cohens v. Virginia (). As a result, Story predicted that “whichever way we decide the Steamboat case, it will create a great sensation—We must content ourselves however in doing our duty & leave to time to decide the consequences.”₁ Given his family’s long involvement with the steamboat monopoly, Justice Livingston could have sympathized. But a bout of pneumonia kept him more concerned with his own well-being than with the health of the High Court. Story’s trepidation reveals the uneasy situation the Supreme Court faced while deliberating Gibbons v. Ogden. Far from developing in isolation, the steamboat controversy remained linked to similar debates over internal improvements, the Second Bank of the United States, and the interstate slave trade. Despite the  appearance of an “era of good feelings,” federal and states’ rights tensions dominated American politics during the late s and early s. Such conflicts sprang from differences in political philosophy, from state pride, and from blatant racism. Whether the federal or state governments maintained the right to control economic development was often a central issue in these controversies. Given the volatility of interstate commerce problems, Chief Justice John Marshall and his brethren would have to proceed delicately if they hoped to settle the “steamboat cause” in a way that minimized risk to the Court’s public credibility. The transportation revolution that had given rise to the New York steamboat monopoly fueled both national economic growth and problems between state and federal governments. By the s, factories had sprung up in New England, Ohio farmers had invested in grain and livestock, and a cotton empire based on slave labor had spread from Georgia to Texas.² In , Congressman Henry Clay launched his ambitious “American System,” which called for the creation of the Second Bank of the United States, a military buildup, strong tariffs, and internal improvements to be funded by new taxes and western land sales. State legislatures from Massachusetts to South Carolina supported canals and turnpikes, and they sold off public land to investors. Not even the financial panics of  and  could permanently blunt the growth of the American economy.³ In addition to governors and legislators, state and federal judges played an important role in the commercial transformation of the United States. Many judges actively reinterpreted communally based English common law to support contractual rights.⁴ The process was neither uniform nor conspiratorial. Some judges believed fiercely that law was an instrument to be used in fashioning a new kind of commercial society. Others relied on traditional interpretations of common law principles that protected vested interests against aggressive development . But whatever their jurisprudential leanings, judges navigated unfriendly waters. In an increasingly individualistic society, Americans viewed with suspicion courts that claimed lawmaking powers independent of the legislative process. Given the difficulty of enforcing decrees, judges had to steer a prudent course in the court of public opinion. And no court in the nation was more conscious of its public image than the U.S. Supreme Court.₅ At its creation in , the federal judiciary was the least powerful branch of an already weak federal government. Under Chief Justices John Jay and Oliver Ellsworth, the Supreme Court had incrementally pursued a reputation as a broker between different individuals, groups, and even states. By , the Supreme Court had arbitrated disputes between citizens of different states in Chisholm v.  Gibbons v. Ogden, Law and Society Georgia (), enforced U.S. treaty provisions in Ware v. Hylton (), and upheld federal taxation powers in Hylton v. United States (). But these decisions were unpopular and were frequently resisted at the local level, particularly in southern and western states.₆ No one did more to shape the authority and traditions of the early Supreme Court than John Marshall, the fourth chief justice.⁷ Marshall was born in  in the northern neck of Virginia to a minor planter family distantly related to Thomas Jefferson. Marshall later recalled that wartime service in the Continental army taught him to consider “America as my country, and Congress as my...