The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
History
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
Constitutional law -- United States; Constitutions -- United States
The etymology of the word, "cum merce (with merchandise)" carries the
primary meaning of traffic--i.e., "to buy and sell goods; to trade"
(Webster's International). This narrow conception was replaced in the
great leading case of Gibbons _v._ Ogden, 9 Wheat. 1 (1824), by a much
broader one, on which interpretation of the clause has been patterned
ever since. The case arose out of a series of acts of the legislature of
New York, passed between the years 1798 and 1811, which conferred upon
Livingston and Fulton the exclusive right to navigate the waters of that
State with steam-propelled vessels. Gibbons challenged the monopoly by
sending from Elizabethtown, New Jersey, into the Hudson in the State of
New York two steam vessels which had been licensed and enrolled to
engage in the coasting trade under an act passed by Congress in 1793.
Counsel for Ogden (an assignee of Livingston and Fulton) argued that
since Gibbons' vessels carried only passengers between New Jersey and
New York, they were not engaged in traffic and hence not in "commerce"
in the sense of the Constitution. This argument Chief Justice Marshall
answered as follows: "The subject to be regulated is commerce; * * * The
counsel for the appellee would limit it to traffic, to buying and
selling, or the interchange of commodities, and do not admit that it
comprehends navigation. This would restrict a general term, applicable
to many objects, to one of its significations. Commerce, undoubtedly, is
traffic, but it is something more--it is intercourse."[308] The term,
therefore, included navigation--a conclusion which Marshall supported by
appeal to general understanding, to the prohibition in article I, Sec. 9,
against any preference being given "'* * * by any regulation of commerce
or revenue, to the ports of one State over those of another,'" and to
the admitted and demonstrated power of Congress to impose
embargoes.[309]
"COMMERCE" TODAY
Later in his opinion Marshall qualified the word "intercourse" with the
word "commercial."[310] Today "commerce" in the sense of the
Constitution, and hence "interstate commerce" when it is carried on
across State lines, covers every species of movement of persons and
things, whether for profit or not;[311] every species of communication,
every species of transmission of intelligence, whether for commercial
purposes or otherwise;[312] every species of commercial negotiation
which, as shown "by the established course of the business," will
involve sooner or later an act of transportation of persons or things,
or the flow of services or power across State lines.[313]
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