132 Pages Posted: 2 Aug 2004
In Gibbons v. Ogden, the first Supreme Court decision to discuss the commerce clause, Chief Justice John Marshall endorsed a dormant commerce clause but refused to adopt it as constitutional principle. Explaining why Marshall hedged on the dormant commerce clause has perplexed scholars for over a century.
Contrary to explanations proffered by others, Marshall had a firm majority of Justices prepared to adopt the dormant commerce clause. Moreover, Marshall understood and described the scope of the dormant commerce clause in sufficient detail to guide future disputes. And, far from fearing a states'-rights-based backlash were he to adopt the dormant commerce clause, his opinion was a nationalist tour de force.
Rather, as I explain, Marshall hedged on the dormant commerce clause for several, mutually reinforcing reasons. First, Marshall apprehended the need to provide a comprehensive articulation of the scope of Congress's affirmative regulatory power under the commerce clause - a need that would have gone unmet had he rested the decision on the dormant commerce clause. Second, Marshall was wary of inserting the judiciary into another battle regarding the constitutional scope of state authority. Marshall understood that, in contrast to constitutionally-based rulings setting aside state legislation, which placed the Court in direct confrontation with the States, statutory-based rulings deflected such opposition by interposing Congress between the Court and the States.
This reassessment resolves a historical enigma regarding the Marshall Court, but it also has contemporary significance for debates regarding popular constitutionalism and the interpretive role of the Supreme Court.
Keywords: Dormant commerce clause, john marshall, popular constitutionalism
JEL Classification: K10, K41
Suggested Citation: Suggested Citation