by Herbert A. Johnson. Lawrence, KS; The University Press of Kansas, 2010. 216pp. Cloth. $34.95. ISBN: 9780700617333. Paper $17.95. ISBN 9780700617340.

Reviewed by Mark Rush, Dean, Arts and Sciences, American University of Sharjah, U.A.E.. Email: markrush7983 [at]


Herbert A. Johnson’s contribution to the University of Kansas’s series on Landmark Law Cases and American Society will not disappoint the scholar of constitutional law or the fan of the Kansas series. GIBBONS v. OGDEN: JOHN MARSHALL, STEAMBOATS AND THE COMMERCE CLAUSE provides a thorough, thoughtful analysis of this important Supreme Court decision as well as the history leading up to it and its impact. It is a very readable, elegantly written and thoroughly researched analysis.

The book’s most important contribution – and, it would seem, the principal contribution of the series – is the background it provides. Whereas casebooks and constitutional histories of the United States provide broad overviews and summaries of the nation’s constitutional development, the Landmark Law Cases series provides depth and historical analysis that simply cannot be squeezed into the typical constitutional law text. Johnson has not failed in this regard.

A full account of GIBBONS and the complex context in which it arose could easily fill a book of much greater scope than Johnson’s. Yet, in this volume he provides just enough detail and narrative to give the reader an appreciation of the complexity of the problems facing the new nation. While many students of constitutional law may recall the issues of federalism and the definition of commerce that preoccupied the new nation for most of its first century, Johnson also nicely weaves in a discussion of the importance of patents and how they too played an important a role in the development of the national economy as any vision of a free national economic system did.

Johnson begins with a thoughtful discussion of the debates about commerce in the constitutional convention and the importance of the Founders’ preoccupation with commerce and economic policy. While some scholars and critics may wish to downplay or criticize this aspect of the founding, there is no doubting that the health of the fledgling nation’s economy played an important role in the formation of the constitutional structure. He nicely discusses the troubles that had arisen under the Articles of Confederation in the absence of any centralized national economic policymaking authority.

The details of life under the Articles can be overlooked when one seeks to squeeze a complete constitutional history into the girth of even the most slender of casebooks. Accordingly, works such as Johnson’s provide important insights into the difficulties that loomed as the [*165] American economy teetered on the brink of balkanization. States were forced by necessity to cooperate and, as a result, the nation was characterized by a hodgepodge of agreements such as the one Johnson discusses between Virginia and Maryland regarding navigation along the Potomac. If states cooperated, they could benefit and coexist. If they did not, economic gridlock could ensue.

While it was clear that in GIBBONS, the Court acknowledged the importance of promoting national power so that it could promote the growth of the economy and prevent balkanization, GIBBONS also embodied an important tension concerning the role and importance of patents to economic development. This was not simply a case concerning one state’s grant of monopoly power to a particular entrepreneur who sought to maintain it.

Johnson nicely demonstrates that the vision of national economic growth could also be supported by a states’ rights vision founded on the importance of patent law. Without a state power to grant patents (and the corresponding power to protect them from national infringement), the economy would as imperiled as it would have been if it were balkanized. With no patent protection, there would be little incentive for innovation or risk and the economy would suffer. In this respect, the arguments made by New York in favor of granting the steamboat monopoly resonate with Madison’s assertions in FEDERALIST 44 about the importance of protecting contracts from impairment.

While such a patent-based justification for state power over commerce makes sense in theory, in practice it could (and did) precipitate interstate competition and the erection of barriers to interstate commerce because barriers to trade and competition were barriers, period. Accordingly, state control over intrastate commerce as well as this particular interpretation of the patent had to bow to the assertion of federal power under Article VI.

Johnson also offers a thoughtful analysis of lower and state court rulings on the commerce clause and state police power prior to the decision. Throughout these vignettes, he indicates that state powers threatened not only the vibrancy of the national economy but also the capacity of the nation to conduct foreign affairs.

In the end, concludes Johnson, the GIBBONS decision can best be understood if we separate the holding from the dictum (p.134). Justice Johnson’s strident assertion of national supremacy in his concurrence does not resonate clearly with the more internally inconsistent opinion of the court penned by Marshall. In asserting the primacy of the Federal Coasting License, Marshall essentially let the tension between local police powers and the need for a unified, coordinated national market fester. As well, insofar as the “losing” side in the case essentially dictated the tenor of Supreme Court Commerce Clause rulings for more than the ensuing 100 years, the decision itself hardly seems to have had an impact in the short run – despite the nationalist tenor of the dicta.

Despite the fact that GIBBONS received what Johnson describes as a “prompt and generally favorable response” (p.138), the decision’s impact was mixed. On the one hand, it did not really enhance national power over commerce. As later [*166] decisions such as BROWN v. MARYLAND (1827), WILLSON v. BLACKBIRD CREEK MARSH COMPANY (1829) and COOLEY v. PHILADELPHIA BOARD OF WARDENS (1852) indicated, the decision – and certainly Johnson’s contribution to it – could not be read as erasing all vestiges of a local police power. From a practical point of view, it was impossible to do so.

Yet, while the balance among the need for a national commerce power, the importance of protecting patents, and the necessity of maintaining local police powers over commerce endured, it was also clear that resistance to the decision was infected by pervasive, festering concerns about the threat posed to the slave trade by a national commerce power. It took a civil war, an industrial revolution, a pattern of labor exploitation and nearly a century for the Supreme Court to revisit and re-envision the necessity of a coordinated, pervasive national power over commerce.

Of course, the immediate impact of the decision was less momentous than the tenor of the dicta. Controversies and disputes continued on the Hudson River as challenges to the Ogden monopoly such as that of the Olive Branch (a steamer that made 50 trips between New York and Albany after crossing to New Jersey once to establish its interstate credentials – pp.142, ff.) continued.

In the concluding chapter, “The Extraordinarily Long Half-Life of GIBBONS v. OGDEN,” Johnson demonstrates the ongoing relevance of Marshall’s nationalistic vision of the commerce power and demonstrates how the vision has been echoed in other federal systems such as those in Australia, Canada and the European Union. Clearly, at least in terms of economics and commerce, consistency and efficiency have outweighed localism and protectionism across the globe. These trends resonate with Marshall’s vision. Whether Marshall demonstrated a true perspicacity or simply stated what was already destined to be an obvious guiding principle in commerce remains subject to debate. However, as Johnson notes in his closing paragraph, the manner in which Marshall enunciated the basis for a nationalistic vision of commerce and the need to prevent balkanization makes GIBBONS one of the Chief Justice’s greatest achievements.

In sum, the strength of Johnson’s work lies in the depth and breadth of its analysis of the historical context of the GIBBONS decision. It neatly fits on the shelf with the rest of the Landmark series and any scholar or student of U. S. constitutionalism will find it to be either an enlightening addition to any constitutional law syllabus or, simply an enjoyable read about an important chapter in the nation’s constitutional history.

BROWN v. MARYLAND 25 U.S. 419 (1827).

© Copyright 2011 by the author, Mark Rush.