1. Constitutional Law I Spring 2004Con Law I Federal Power II Gibbons v. Ogden Feb. 12, 2004

2. 2 Themes in Federalism History Royal Charters –> Colonies –> States -> Union Articles of Confederation –> Constitution Civil War; economic unification Political Theory Decentralized gov't better protects liberty Encourages "experimentation" Constitutional Law Theories of Interpretation Forum for mediating federalism disputes

3. 3 Federalism – Forum for Mediating Court Text of constitution suggest that allocation of power is a judicial question  Art. I, § 1: "All legislative Powers herein granted …"  Amd X: "The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Congress Structure of constitution suggests that division of power is determined by states' in Congress  Composition of congress  Amd XVII

4. 4 The Commerce Power Disputes over federalism often appear in the context of the commerce power Art. I, § 8, cl. 3: "The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Must define "commerce" Must define "among" Must define "regulate"

5. 5 Thomas GibbonsAaron Ogden v.

6. 6 Robert Fulton Steamboat Clermont

7. 7 Gibbons v. Ogden (1824) New York law grants exclusive franchise to conduct ferry business between NY and NJ Federal law grants franchise to Gibbons to engage in "coasting trade"

8. 8 Gibbons v. Ogden (1824) New York law grants exclusive franchise to conduct ferry business between NY and NJ Federal law grants franchise to Gibbons to engage in "coasting trade" Is the NY law constitutional? Does it violate any limitation in constitution? Is it preempted by the federal law?

9. 9 Gibbons v. Ogden (1824) New York law grants exclusive franchise to conduct ferry business between NY and NJ Federal law grants franchise to Gibbons to engage in "coasting trade" Is the NY law constitutional? Does it violate any limitation in constitution? Is it preempted by the federal law? Is the federal law constitutional? Does it exceed congress' commerce power?

10. 10 Meaning of "Commerce" Interpretive Methodologies Intent (originalism)  “The power over commerce,including navigation, was one of the primary objects for which the people of America adopted their government”  “Convention must have used the word in that sense” Historical validation  “power [over navigation] has been exercised from the commencement of the government, has been exercised with the consent of all” Structure  See Art. I § 9 (limiting power over navigation)

11. 11 Does Commerce include Navigation? Traffic Buying and selling of commodities Intercourse All species of commercial transactions

12. 12 Extent of Congress’ power Marshall rejects “strict construction” Expansive interpretation of "commerce" these words comprehend every species of commercial intercourse No sort of trade can be carried on... to which this power does not extend Expansive interpretation of "among" "Intermingled with"

13. 13 within Does congress’ power extend to commerce within the States? Commerce among the States must, of neces- sity, be commerce with the States if a foreign voyage may commence or ter- minate at a port within a State, then the power of Congress may be exercised within a State.

14. 14 If congress’ power extends to inter-state commerce, can this be exercised without regulating some aspect of commerce within the states themselves?

15. 15 What portion of the ferry trip between NY and NJ does congress have power to regulate? Can it regulate the intra-state portion? Wholly intra-state?

16. 16 "The genius and character of the whole gov't seems to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state."

17. 17 Gibbons' affect on NY population New York Philadelphia

18. 18 Practice Questions 1. Could (prior to 1865) congress use its commerce power to ban the slave trade? a.Is the slave trade commerce? b.Can congress prohibit wholly intrastate transactions? c.See Art. I, § 9, ¶ 1 2.Could congress prohibit the importation of slaves? 3.Could congress prohibit slavery itself? a.See fugitive slave clause, Art. IV, § 2, ¶ 2