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The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause

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The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause Indiana Law Journal Volume 38 Issue 2 Article 1 Winter 1963 The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause W. Howard Mann Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation Mann, W. Howard (1963) "The Marshall Court: Nationalization of Private Rights and Personal Liberty from the Authority of the Commerce Clause," Indiana Law Journal: Vol. 38 : Iss. 2 , Article 1. Available at: https://www.repository.law.indiana.edu/ilj/vol38/iss2/1 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. INDIANA LAW JOURNAL Volume 38 WINTER 1963 Number 2 THE MARSHALL COURT: NATIONALIZATION OF PRIVATE RIGHTS AND PERSONAL LIBERTY FROM THE AUTHOR- ITY OF THE COMMERCE CLAUSE V. HOWARD MANNt I. INTRODUCTION The commerce clause serves a twofold purpose: It constitutes a direct source for the most significant and extensive general regulatory power of the national government,' and with the exception of the due process and equal protection clauses of the fourteenth amendment it serves as the most important authority for the imposition of constitu- tional limitations upon state powers.2 The restrictive nature of the operation of the commerce clause as a curb upon state powers was long the more significant aspect in constitutional adjudication.' Its broader purpose, a source for extending the powers of the national government, was thought to be limited and generally was not comprehended.' Thus, legal concepts of "commerce" which had the effect of designating con- stitutional protections against state invasion and interference have domi- nated adjudications dealing with the constitutional authority of the com- merce clause.2 Congress' powers to effectuate national policy through j Professor of Law, Indiana University. 1. THE: CO NSTITUTION OF THE UNITED STATES OF AMERICA 118 (Corwin ed. rev. & anno. 1953). 2. See, e.g., Sholley, The Negative Implications of the Commerce Clause, 3 U. CHI. L. Rnv. 556 (1936). 3. See, e.g., CoRwIN, THE COMMRacE POWER VERSUS STATES RIGHTS 18-19, 23, 33- 38, 55, 78, 115, 175 (1936). 4. See the argument of Henry Clay in Groves v. Slaughter, 40 U.S. (15 Pet.) 449, 488-89 (1841), in which he raised the specter of an act of the Congress forbidding trade and possibly ownership in negro slaves. THE CONSTITUTION OF THE UNITED STATES OF AmERICA 163-68 (Ccrwin ed. rev. & anno. 1953) ; Cushman, The National Police Power Under the Commerce Clause of the Constitutio, (pts. 1-3), 3 MINN. L. REv. 289, 381, 452 (1919) ; Stern, The Commerce Clause and the National Economy, x933-1946, (pts. 1-2), 59 HARv. L. REv. 645, 883 (1946). 5. Different views may be reflected as to the relationship of government and law to existing social and economic conditions, e.g.: It is all but impossible in our own age to sense fully its eighteenth century meaning [i.e., the meaning of commerce]. The eighteenth century did not INDIANA LAW JOURNAL regulation remained in the background and were sometimes rejected as nonexistent.6 The commerce clause has not only been used in constitutional ad- judication to curb state powers in order to secure the existence of national powers ;7 it has also served to secure for the Supreme Court the jurisdic- tional authority to nationalize and enforce private rights and personal liberty.' And the impact of state powers upon private rights and per- sonal liberty has often provided the impetus for the nationalization and enforcement of private rights and personal liberty through constitutional adjudication.9 separate by artificial lines aspects of a culture which are inseparable. It had no lexicon of legalisms extracted from the law reports in which judicial usage lies in a world apart from the ordinary affairs of life. Commerce was then more than we imply now by business or industry. It was a name for the economic order, the domain of political economy, the realm of a comprehensive public policy. It is a word which makes trades, activities and interests an in- strument in the culture of a people. If trust was to be reposed in parchment, it was the only word which could catch up into a single comprehensive term all activities directly affecting the wealth of the nation. HAMILTON & ADAIR, THE PowER To GOvERN 62-63 (1937). 6. See RIBBLE, STATE AND NATIONAL POWER OvER Co MERcE 156-81 (1937). For a notable exception to the general failure to see the extent of the national powers caused by concentration upon state power limitations, see the opinion of Ar. Chief Justice Waite in Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1, 9 (1877): The powers thus granted are not confined to the instrumentalities of com- merce . known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new de- velopments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat . and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general govern- ment for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation. 7. The role of the Supreme Court has not been to limit state powers in order to preserve national powers; and, conversely, it is not an essential function of the Supreme Court to limit national powers in order to preserve the continued existence of state powers. See, e.g., POWELL, VAGARIES AND VAiErms IN CONSTITUTIONAL INTEaRErATIoN 142-79 (1956) ; Corwin, The Passing of Dual Federalism, 36 VA. L. Rxv. 1 (1950). 8. Freedom of movement, freedom of association and other entrepreneurial aspects may have a close assimilation to the privileges and immunities, due process, and equal protection clauses of the Constitution. See, e.g., Edwards v. California, 314 U.S. 160 (1941) ; Robbins v. Shelby County Taxing Dist., 120 U.S. 489 (1887); Ward v. Mary- land, 79 U.S. (12 Wall.) 418 (1870) ; Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867). 9. See Elkison v. Deliesseline, 8 Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823); Freund, Review and Federalism, in SUPREME CoUT AND SUPREME LAW 86, 95 (Calm ed. 1954). When a problem is thought to extend to "fundamental rights"-beyond the legal rights drawn from the freedom relating to business or personal associations-it occasionally is argued that the Supreme Court ought to use a constitutional authority other than the commerce clause. Compare Douglas, J. in Edwards v. California, 314 U.S. 160, 177-81 (1941), with the various opinions in Morgan v. Virginia, 328 U.S. 373 (1946). But whatever national policy or social value underlies the use of the commerce THE MARSHALL COURT A study of the Marshall Court must give due weight to the social and economic conditions which constituted the source of the adjudica- tions from the commerce clause."0 Further, it may be helpful to preserve the Marshall Court's understanding of its authority to formulate national law from the authority of the commerce clause." But not the least im- portant are studies which pertain to the contributions and failings of the Marshall Court in law and legal history," and are not necessarily related to such factors as the social and economic circumstances and theories relating to the Constitution which may have influenced the particular adjudications.' clause or another provision as constitutional authority the complainant must have a pe- culiar relationship to the policy or social value in order that he may receive remedial benefits alleviating an injury which constitutes a legal injury. But cf. Engel v. Vitale, 370 U.S. 421, 430-31 (1962), where the enforcement of policy or social value was said not to require the justification of an injury for remedial alleviation, though an injury possibly existed supporting the use of the freedom of religion clause as constitutional authority. 10. See 1 DORFMAN, THE EcoNoMIc MIND iN AMERICAN CIVuIzATION, 1606-1865, 472-84 (1946). 11. RIMBLE, STATE AND NATIONAL PowFR OvER COMMERCE 20, 29 (1937). 12. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), is much more than the initial pronouncement of the Supreme Court upon the scope of the national authority which the Congress may use to regulate commerce and the limitations which the Court may impose upon the states by the national law. By comprehending it in its entire historical and legal setting, one might gain special insight into the pressures of the present. It was ir. Justice Holmes who said: [H]istory is the means by which we measure the power which the past has had to govern the present in spite of ourselves, so to speak, by imposing traditions which no longer meet their original end. History sets us free and enables us to make up our minds dispassionately whether the survival which we are enforc- ing answers any new purpose when it has ceased to answer the old.
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