by Thomas H. Cox. Athens: Ohio University Press, 2009. 264pp. Cloth $44.95. ISBN: 9780821418451. Paper $26.95. ISBN: 9780821418468.
Reviewed by Mark R. Killenbeck, School of Law, University of Arkansas. Email: mkillenb [at] uark.edu.
It has been almost forty years since the publication of the only book-length scholarly study of GIBBONS v. OGDEN (1824), Maurice G. Baxter’s THE STEAMBOAT MONOPOLY: GIBBONS v. OGDEN, 1824. Baxter was realistic about what he hoped to accomplish, stressing that, “though I have undertaken the first lengthy study of the case, there is naturally much more that could be said if one were to be ‘exhaustive’” (p.v). Tom Cox has now taken up the implicit challenge, transforming his doctoral dissertation into a study that reflects extensive research, is rich in detail, and may in certain key respects prove definitive.
Cox sets himself three tasks: to offer a “window into the alliances that landholders and inventors struck” as they developed American steamboat technology in pursuit of “their financial interests and social status;” to illustrate the ways in which “these individuals used the state and federal court systems to advance their economic interests;” and to establish that Chief Justice Marshall’s “sweeping decision” in GIBBONS is indeed “an important precedent, an ‘Ithuriel spear’ with which the Supreme Court would rule on a variety of issues involving trade over the next two centuries” (p.xiv).
He succeeds admirably in fulfilling two of the three. Cox offers lengthy and often nuanced portraits of the principal actors in what he rightly characterizes as “a conflict that bordered at times on melodrama,” one involving “powerful families, public campaigns, and private intrigue” (p.181). We learn a great deal about a great many people, much of which reveals the hardly surprising fact that the individuals who shaped the early national economy were intensely human; complex characters who pursued simultaneously both noble goals and their own enrichment, often at the expense of their integrity. For example, traditional accounts of Robert Fulton characterize him simply as the engineer and inventor responsible for the development of this nation’s first commercially successful steamboat. The Fulton that emerges from the pages of this study is talented and ambitious, and achieved a number of important things. But he is also deeply flawed, accused with considerable justification by his contemporaries of being “an unscrupulous ‘capitalist’ passing off the inventions of others as his own” and “not even above using false names and perjury to advance his interests” (p.81).
Cox’s second focus is the litigation that surrounded steamboat technology, and he provides meticulous and detailed accounts of the numerous lawsuits brought regarding both the invention of that technology and challenges mounted against various state-granted steamboat [*174] monopolies. One of the important realities surrounding GIBBONS is that the case that reached the Supreme Court in February, 1824, was simply one of many pursued over twenty-plus years in both state and federal courts. The decisions issued in these lawsuits reflected both the best and worst in early American law. Cox provides the factual details and enlightening sketches of the attorneys who argued the cases and the judges who decided them. While it is sometimes difficult to keep track of the ebb and flow of the various lawsuits, Cox does demonstrate how, taken together, this litigation became part of the “complex debate over the modernization of American society . . . negotiated . . . through the courts and in newspapers, private letters, public advertisements, and steamboat races” (p.193). In particular, he is especially adept at identifying and setting forth the primary source materials that flesh out this debate, quoting at length from the voluminous correspondence exchanged between and among the actors and drawing extensively on the lively give and take that took place in the pages of an active press.
As the title of the book suggests, Cox’s overarching goal was to identify the social dimensions of law writ large and its role in the development of the early republic. Viewed in that light, he does an admirable job. He is, however, less successful in his attempts to explore fully his third professed objective, an accounting of the nature, scope, and implications of GIBBONS as an important precedent, both in terms of what the Court itself actually said in that case and in its subsequent decisions parsing the commerce clause.
This is not a fatal flaw. Viewed on its own terms this book is a valuable addition to the literature. In particular, it provides the wealth of detail that Baxter eschewed. Individuals interested in the historical realities that lay behind the GIBBONS opinion will find most of what they need if their goal is to gain an understanding of origins of the dispute, the personalities that shaped it, and the place of steamboat technology in the developing national economy. Cox’s treatment of what the Marshall Court actually did in GIBBONS is, however, less successful, as is his account of GIBBONS as precedent in the evolution of commerce clause doctrine.
The commerce clause – Article I, § 8, clause 3 – might well have initially been, as Calvin Johnson (2005, p.189) argues, “a modest, even trivial power” that “contributed little to the adoption of the Constitution.” But, as Jack Rakove (2009, p.134) has recently stressed, “As a matter of political philosophy, history, and jurisprudence, the spare formula of this clause is freighted with as much significance as any other provision in the Constitution.” Indeed, in the modern administrative state this clause has arguably become the single most important provision in the Constitution.
Cox understands this, but many of the things he does not do are potentially troubling, at least for a law professor. For example, one of the central elements of GIBBONS is the interplay between Chief Justice Marshall’s opinion for the Court and Justice William Johnson’s concurring opinion, within which he argued, as Cox accurately notes, that “Congressional commerce powers were, therefore, broadly based and exclusive” (p.159). It is one thing to document, as [*175] Cox does, John Marshall’s decision to accept a broad definition of the term “commerce” in the Court’s first encounter with the clause. It is quite another to hold that the federal power is not exclusive, the heart of Marshall’s dispute with Johnson. Cox notes the dispute, but does little to explain it or its implications. Moreover, subsequent Marshall Court decisions like WILSON v. BLACK-BIRD CREEK MARSH COMPANY (1829) may or may not have been a “retreat” from the “nationalistic stance in GIBBONS” (p.185). But whether or not this is the case depends on how one views a number of things Cox does not discuss or to which he simply alludes. What, for example, is the significance of the fact that there was no background Congressional legislation in WILSON, unlike the situation in GIBBONS? And what exactly follows from the fact of concurrent federal and state authority, if indeed that is the situation?
The Taney Court resolved part of this in COOLEY v. BOARD OF WARDENS (1852), within which it articulated what is now known as the Cooley Doctrine, a rule that focuses on the nature of the subject being regulated, “some imperatively demanding a single uniform rule . . . and some . . . as imperatively demanding that diversity, which can alone meet local necessities” (53 U.S. 319). This principle did, as Cox notes, provide at least a part of the “baseline for determining federal commerce clause cases from the 1850s to the 1930s” (p.186). But the doctrine – which Cox does not really explain – is complex. In particular, it sets the foundations for what is now known as the dormant commerce clause. That theory, which some Justices have condemned as inconsistent with the text, allows the commerce clause to serve as the basis for striking down state measures that either discriminate against interstate commerce or impose excessive burdens on such commerce, even in the absence of congressional action. This reality is then much more complex than what Cox postulates, i.e., that COOLEY means simply that “Congress controlled national commerce but that states could regulate trade issues on which the federal government had not spoken” (p.186).
In a similar vein, the Rehnquist Court’s so-called “New Federalism” decisions, in particular UNITED STATES v. LOPEZ (1995) and UNITED STATES v. MORRISON (2000), are not in fact cases holding that “state laws already provided gun control [LOPEZ] and rape prevention [MORRISON], making federal laws based on the commerce clause unnecessary” (p.192). They are rather ones within which a narrow 5-4 majority, under the leadership of Chief Justice William H. Rehnquist, held that a key aspect of modern commerce clause doctrine – the notion that congressional authority extends to purely local activities that “substantially affect interstate commerce” – must be confined to purely “economic activity.”
That holding was actually at odds with the applicable precedents. In WICKARD v. FILBURN (1942), for example, the Court stated expressly that if an “activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce” (317 U.S. 125). The Court is, of course, free to discard prior precedent, stare [*176] decisis notwithstanding. But, as WICKARD emphasized, it was in GIBBONS that “Chief Justice John Marshall described the federal commerce power with a breadth never yet exceeded” and “made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes” (p.120).
Cox does not discuss these aspects of GIBBONS and its judicial aftermath. Does that matter? In one important sense it does not, if our goal is to understand more fully the development of American steamboat technology, the nature and implications of the monopolies that both fostered and retarded the evolution of this new industrial tool, and the complex personal and political dimensions of public economic policy in the nation’s formative years. Cox’s study is then valuable in its own right, provided we understand that his take on the law of the commerce clause is limited and incomplete. I suspect he understands much of this, and that the shortcomings of this book (if indeed shortcomings they be) reflect calculated judgments about what could and could not be included in an initial study directed at what the book’s cover description characterizes as “the social and political context in which the case was decided.”
Historians, political scientists, and law professors see things differently. That is almost always a good thing, as each discipline brings to the table strengths and perspectives the others do not. Cox’s volume is a history of GIBBONS within which the sorts of nuances of constitutional doctrine about which law professors fret are set aside in favor of an accurate and generally very readable account of people and events. It is accordingly a must read for individuals interested in these matters, complementing rather than replacing Baxter’s work, which takes a different approach. It also provides information readers will not find in Herbert A. Johnson’s forthcoming book on GIBBONS. Johnson initially collaborated with Cox but eventually went his own way at Cox’s request. His book will explore in much greater detail the origins of the commerce clause, the development of Marshall Court doctrines, and their explication, expansion, and contraction as succeeding Courts undertook the challenges posed by a constitutional provision that is deceptively simple in theory but profoundly difficult to understand and apply in practice.
Johnson’s decision to write separately was fortunate, for it means that we will shortly have three treatments of GIBBONS in hand. Cox’s volume fills a needed void. This is, in short, a very good time to have an interest in GIBBONS, the Marshall Court, and the development of commerce clause doctrines from founding to the present.
Baxter, Maurice G. 1972. THE STEAMBOAT MONOPOLY: GIBBONS V. OGDEN, 1824. New York: Alfred G. Knopf.
Johnson, Calvin H. 2005. RIGHTEOUS ANGER AT THE WICKED STATES: THE MEANING OF THE FOUNDER’S CONSTITUTION. New York: Cambridge University Press. [*177]
Johnson, Herbert A. (forthcoming) GIBBONS V. OGDEN: JOHN MARSHALL, STEAMBOATS, AND INTERSTATE COMMERCE. Lawrence: University Press of Kansas.
Rakove, Jack N. (ed.) 2009. THE ANNOTATED U.S. CONSTITUTION AND DECLARATION OF INDEPENDENCE. Cambridge, Ma.: Belknap Press.
COOLEY v. BOARD OF WARDENS OF THE PORT OF PHILADELPHIA, 53 U.S. (12 How.) 299 (1852).
GIBBONS v. OGDEN, 22 U.S. (9 Wheat.) 1 (1824).
MARBURY v. MADISON, 5 U.S. (1 Cranch) 137 (1803).
UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).
UNITED STATES v. MORRISON, 529 U.S. 598 (2000).
WICKARD v. FILBURN, 317 U.S. 111 (1942).
© Copyright 2010 by the author, Mark R. Killenbeck.