Gibbons v. Ogden: John Marshall, Steamboats, and the Commerce Clause (review)

In this useful addition to the Landmark Law Cases and American Society series, Herbert Johnson—one of the deans of early American constitutional history—provides an authoritative account of the career and impact of John Marshall’s 1824 Gibbons v. Ogden ruling. With McCulloch, Marbury, and a handful of other Marshallian landmarks, Gibbons stands even today as a marker along the path by which federal courts—and indeed the federal government more generally—managed to interject meaningful control over the shape and direction of an emerging national marketplace. In Gibbons, the facts of the case implicated America’s transportation system; but in the end, the decision, particularly its nonbinding commentary (or dicta), powerfully shaped federal–state conversations about national and international trade well into modern times and helped establish the Supreme Court as a mediator in federal–state disputes.

To his credit, Johnson is not content to stay indoors. Instead, he provides a case biography, moving restlessly between Marshall’s courtroom and the lived-in world. He pays attention to the role of personality and political imperatives in shaping judicial public policy. Johnson’s command of the details of the case and its historical moment provide considerable texture as well as accuracy. In his view, Gibbons’s significance rests less with dramatic boosts to federal power over steamboats or inland waterways than with the creation of an atmosphere of federal energy and competence in mediating critical disagreements within the federation. John Marshall and his colleagues managed this feat, not by laying out the specifics of the commerce clause’s dormant powers but by failing to do so. Doors were left open; the ripe possibility that Congressional authority over slavery might one day prove to be decisive was not addressed; the exact scope of dormancy was not specified. Gibbons surely did not confer on Congress an exclusive power over interstate commerce, as textbooks frequently claim. Instead, Johnson maintains, studied ambiguity ensured long life while permitting the Court to navigate difficult political waters and secure its reputation as a body capable of even-handed distributions of power.

Books in the Landmark Law Cases series are specifically designed for classroom use, and this one will have a distinguished career in collegiate education. The writing is clear and accessible without undue oversimplification. More important, Johnson’s willingness to gaze more than once at the landscape beyond Supreme Court windows in search of relationships between judicial public policy, commerce, and transportation will permit use of the book in settings beyond constitutional history courses.

Not surprisingly, there are points of contestation and regret: I miss (to the extent that one can tell without footnotes) nonlegal sources such as newspapers, particularly in sections that assess Gibbons’ sociopolitical importance. I certainly wish for better detail about the case of Green v. Biddle, the second opinion of which did not lead to mollification of the public, as Johnson claims; on the contrary, given the quite explosive rebellion afoot in Kentucky, it had the opposite effect. Here, the tendency to organize materials around legal headings (commerce, contract, and so on) makes it difficult to perceive important connections between doctrinal apples and oranges. And, finally, I wish that Johnson had resisted the powerful tug of twenty-first-century law practice in the conclusion, instead emphasizing the significance of the decision for the long and formative nineteenth century. For one thing, conclusions tied to very recent law reports will ultimately date the book.

But these are matters of scholarly taste, training, and emphasis; they no doubt originate in two scholars’ differing aspirations for the field of American constitutional history. Gibbons v. Ogden goes more than far enough in the direction of society and economy to redirect and correct the master narrative; hands down, it is the best available account of the ruling in print.