THE CONSTITUTION of the United States grants to Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (Article I, Section 8). Until 1824, however, neither Congress nor the Supreme Court defined what is meant by the regulation of commerce. In that year, thanks to a dispute between two rival steamboat operators, the Supreme Court had the opportunity to define the power, and John Marshall’s broad interpretation turned what might have been a neglected clause into one of the most important constitutional provisions for justifying a broad exercise of congressional power. His was not the last word on the subject, however, for the debate continues to this day.
On August 17, 1807, the North River Steamboat* made an upriver voyage from New York to Albany in thirty-two hours. Designed by Robert Fulton, a gifted engineer and shameless self-promoter, and financed by his partner, Robert Livingston, the steam-powered boat, able to sail inland waterways without the need for wind or currents, would revolutionize transportation in the United States in the early nineteenth century. It would become the dominant means of transportation of agricultural goods to market, as well as of travelers, until the explosion of railroads at the time of the Civil War. Every schoolchild is taught that Fulton invented the steamboat; it would be more accurate to say that he built upon the work of others, perfected the idea, and made it into a workable reality.
Twenty years earlier, at the time of the Constitutional Convention in 1787, while the Committee on Detail put together the various provisions that had been agreed upon, a number of delegates went down to the Delaware River to view the launch of an experimental steamboat, Perseverance, built by the inventor John Fitch. Absent from that group was the one delegate who might well have been expected to be most interested in such an invention, Benjamin Franklin. But Franklin had given his support to another man working on a steamboat, James Rumsey. Although both Fitch and Rumsey had promising designs, and both received patents on their designs, neither could secure the financial or political patronage necessary to raise the large capital investment needed to turn their primitive prototypes into commercially viable steamboats. It remained for the team of Fulton and Livingston to make the steamboat financially viable.
Robert Livingston had been born into one of the great New York families, and enjoyed social status, political influence, and, of course, wealth. He had a successful law career, rising to become the first chancellor of the state, its highest judicial office. He was also an enthusiastic amateur scientist, and pursued a number of experiments, such as building gristmills so as to eliminate the friction between stones, and crossing cows with elk at his estate at Clermont on the Hudson. He followed the efforts of Fitch and Rumsey, but refused to invest in them, believing they had not developed a design that would prove commercially feasible. But he did perceive that if a steamboat could be perfected, it would have an enormous impact on the country, and make its inventor and sponsors a lot of money.
He conducted some experiments with his neighbors and fellow amateurs, John Stevens (who would later do pioneer work in railroads) and Nicholas Roosevelt. In 1801 Thomas Jefferson appointed Livingston as one of the ministers to France to negotiate what would ultimately become the Louisiana Purchase. When he departed, he despaired that he would ever see the steam engine developed. In Paris, however, he met the man who would do what others before him had failed to accomplish.
Robert Fulton had grown up in Lancaster, Pennsylvania, and for many people he embodied the energy and self-confidence of the young nation. He had been a locksmith, a gunsmith, a draftsman, and a portrait painter; in fact, he had gone to England to study painting with Benjamin West. While there he also developed an abiding interest in submarines and torpedoes. As one scholar noted, it might be doubted whether Fulton’s lifelong purpose was to put boats upon the water or to blow them out of it. Fulton, however, had a gift of taking different strands of thoughts and the ideas and inventions of other people and putting them together in a way that would work. The work of other inventors existed only to be borrowed. “All these things,” he declared, “being governed by the laws of nature, the real invention is to find [such laws].”
In Paris, Fulton and Livingston built an experimental steamboat and successfully sailed it on the Seine. With Livingston’s financial backing, Fulton then went to England and managed to talk the British government into allowing the Boulton & Watt Company to build a steam engine to his specifications and for export. On April 23, 1807, Fulton claimed the engine at the New York Custom House, and took it over to his carpenter, who built a boat under Fulton’s guidance to house the engine.
The boat’s inaugural voyage took her through the highlands of the Hudson, and without a moon to illuminate the river, it seemed as if a volcano were sailing up the river spewing smoke and sparks. It apparently excited great terror among some of the farmers along the banks. One reportedly raced home, barred the doors, and declared that the Devil himself was going up to Albany in a sawmill.
In February 1809 the U.S. government gave Fulton a patent on his design. The issuance of a patent is designed, among other things, to confer a monopoly on the inventor for a period of time. The value of a patent and the exclusivity it provides, however, are directly proportional to the patent-holder’s ability to raise the necessary capital to develop the invention into a commercially feasible operation. He must also be prepared to prosecute infringers of his rights, successfully market the invention to the general public, and then license its use to those who would compete with him for the business.
In 1798 the New York legislature granted monopoly rights to John Fitch for steamboat navigation on the Hudson River, which flows for nearly three hundred miles within New York before forming the border between New York and New Jersey at its mouth. Fitch’s monopoly also included other New York waters, such as the upstate lakes. When Fitch could not raise the money to perfect his invention, however, the politically well-connected Livingston secured the monopoly rights for the partnership he had with Fulton. After Fulton demonstrated the success of his boat, the legislature extended the franchise for another twenty years, until 1838. The law gave Fulton and Livingston exclusive rights of steamboat navigation on all state waters, including the adjacent coastal waters, and on the lower Hudson River, where it runs between New York and New Jersey. The Fulton-Livingston group assigned licenses to a number of individuals to run steamboats in New York waters, collecting goodly sums of money in the process. This gave it the resources it needed to fight off efforts to break its monopoly, especially in the courts.
The profitability of a steamboat between New York City and the state capital in Albany led to the first serious challenge to the Fulton-Livingston group. The steamboat cut the time it took to get between the two cities from several days to a little more than one day, and in May 1811 a group of Albany businessmen, led by James Van Ingen, decided to start their own steamship line without getting a license. The Fulton-Livingston interests immediately sued in the federal circuit court of New York, only to have the case thrown out for lack of jurisdiction. Justice Henry Brockholst Livingston, whom Thomas Jefferson had appointed to the Supreme Court in 1806, was sitting on circuit, and pointed out that all of the parties involved were citizens of New York, and therefore the case could not be tried in a federal court because there was no diversity of citizenship. Because of the very complexity of the various patents involved, including some filed by earlier inventors and from which Fulton had borrowed, the Fulton-Livingston interests did not want to use what would have been their other—and legitimate—grounds for going into federal court: namely, the defense of a patent.
Instead, they went into a New York court seeking an injunction against Van Ingen to stop his company from plying the Hudson River in a steamboat. In October 1811 John Lansing Jr., a former mayor of Albany and a successor to Livingston as chancellor, denied the injunction, for what appeared to be political as much as legal reasons. The Fulton-Livingston group then went to the Court of Impeachment and Errors, at that time the state’s highest court. Composed of justices from the New York Supreme Court as well as a few members of the state senate, the Court of Errors heard the appeal, and in 1812 handed a significant victory to Fulton in Livingston v. Van Ingen. The case is important not only because it came from the pen of one of the most highly respected jurists of the time, Chief Justice James Kent, but also because it laid out with great clarity the status of the commerce clause at the time, as well as relations between the federal government and the states over who could exercise authority in specific areas.
The Court of Errors might have confined itself to a very narrow reading of the case—namely, did Van Ingen, by establishing a nonlicensed steamboat service, violate the rights granted to the Fulton-Livingston group? This was clearly the case, and the court could have ignored all other matters, such as whether New York even had the power to establish a monopoly, or if the lower Hudson River, where it ran between New York and New Jersey, came under control of the federal government. Kent and his colleagues, however, did not ignore these issues, nor did they ignore the question of whether a monopoly served the public interest.
In their opinions, Joseph Yates and Smith Thompson (whom James Monroe would appoint to the Supreme Court in 1823) strongly endorsed the legitimacy of New York granting exclusive privileges to the Fulton-Livingston group. The award of a monopoly for a period of years to reward inventors was a common policy. The franchise covered only the territorial waters over which New York normally exercised jurisdiction, a power traditionally associated with state sovereignty that pre-existed the adoption of the Constitution. Moreover, the federal Constitution only allowed patent rights to inventors and authors (copyright), and said nothing about what New York had awarded—the right to navigation. The state had originally made that award to John Fitch, and then had, through an official act of the legislature, transferred it to Fulton and Livingston. Neither Yates nor Thompson saw any conflict between state grants of monopolies and either the patent provisions or the commerce clause of the Constitution. The federal government controlled one area, and the states held sovereignty over another.
Chief Justice Kent, on the other hand, did not draw a bright line between state and federal authority, but pointed out that up until that time Congress had enacted no legislation regulating commerce. This meant that the Fulton-Livingston monopoly did not come within the ambit of congressional authority so far, but he speculated that it might do so in the future, depending on how Congress chose to exercise the powers of the commerce clause. “It may be difficult,” he noted, “to draw an exact line between those regulations which relate to external and those which relate to internal commerce, for every regulation of one will, directly or indirectly, affect the other.” Until Congress acted, therefore, it would be a “monstrous heresy” to interfere with an existing state grant in the absence of either federal legislation or a specific constitutional prohibition.
All three judges agreed that should there be a conflict between a state law and federal action, the latter would prevail under the supremacy clause. None of the three judges, however, knew whether federal power over commerce was exclusive (that is, it could only be exercised by Congress) or concurrent (where both the states and the national government shared authority). In words that Chief Justice John Marshall, a champion of a strong national government, might have employed, Kent noted that “the legislative power, in a single, independent government, extends to every proper object of power, and is limited only by its constitutional provisions, or by the fundamental principles of all governments, and the unalienable rights of mankind.” The monopoly New York had granted to Fulton and Livingston pertained only to steamboat travel within the state, and so the question, according to Kent, was not what powers Congress had, but rather what powers remained with the state. If, he concluded, a power that originally belonged to a state had not been ceded to Congress, and the Constitution did not specifically prohibit it to the states, then the states could continue to exercise that power until and if it came into conflict with federal laws.
Kent believed the commerce powers were concurrent—that is, both the states and the national government had authority in this area. In looking at the Constitution, he found only one clause that related directly to the states and commerce, the provision prohibiting states from imposing tariffs or taxes on exported goods (Article I, Section 9). The narrowness of this provision, he suggested, indicated that many other commerce-related powers remained within state control. In fact, the limits of the federal patent power indicated that the Framers of the Constitution expected that states would take steps to enhance the value of inventions, much as New York had done.
Although Kent’s extensive dictum on the relation between state and federal power might have been unnecessary to resolve the case, it did send a powerful message to others who might want to challenge the Fulton-Livingston monopoly: New York had acted within its authority, and the monopoly would resist all legal challenges.
While the Court of Errors was resolving the dispute with Van Ingen, Livingston and Fulton had to defend their monopoly from other interlopers. In 1800 Aaron Ogden, the former governor of New Jersey, had begun a wind-powered ferry between Elizabethtown, New Jersey, and New York City, an enterprise that did not trespass on the Fulton-Livingston monopoly. In 1812, however, he converted to steam, and that triggered litigation between Ogden and the Livingston-Fulton group. The parties settled that suit in 1814, Ogden became a licensee of Fulton’s franchise, and under the terms of their agreement he had the sole right to run a steam ferry between Elizabethtown and New York.
This license made Ogden an ally of Fulton and Livingston. The latter, however, had died in 1813, leaving the large Livingston family to squabble over who owned his estate, and after Fulton’s death in 1815, Ogden—now allied with the Fulton interests—became the primary defender of the patent and monopoly rights. Thus he, and not Fulton, sued Thomas Gibbons when the latter established a competing steam ferry on the New York–Elizabethtown route in 1816, a suit that eventually wound up in the U.S. Supreme Court.
Gibbons had been a Tory Loyalist during the Revolution, and then a land speculator in Georgia, where some of his activities were considered unethical if not completely illegal. In 1801 he relocated to New Jersey, where his somewhat shady past would be less known. When he learned about the profitability of the wind-powered ferry lines established by Ogden and others, he secretly purchased the shares owned by Jonathan Dayton, one of Ogden’s investors; became a partner in the firm; and, utilizing Ogden’s social and political contacts, soon became a successful businessman. At this time Ogden had not yet secured the franchise from the Fulton group, and he and Gibbon decided to challenge the Fulton-Livingston chokehold on ferry lines in the New York City area, and persuaded the New Jersey legislature to enact legislation that levied fines and forfeiture on Fulton-Livingston vessels operating in New Jersey waters.
They then planned to attack the New York monopoly on three fronts. First, they would try to have the New York legislature rescind its grant. Second, they would challenge the monopoly in both the New York and the New Jersey courts. Finally, if the first two efforts failed, they would go into federal court and claim that the state-granted monopoly violated the commerce clause of the Constitution. Thanks to Livingston’s influence with the New York legislature, Ogden and Gibbons got nowhere trying to get the New York assembly to repeal the grants; similarly, Ogden’s position in New Jersey (as a former governor) ensured that that state’s legislature would not repeal its law.
Before the two could start judicial proceedings, however, a personal feud erupted between them, as Ogden took umbrage over how Gibbons treated his married daughter, and this led to the breakup of their business arrangements. Ogden then started his own steamboat ferry and, as noted above, became a licensee of the Fulton group. In 1816 Gibbons established his own steamboat company, with the specific intent of challenging Ogden’s monopoly over the lucrative Elizabethtown–New York City route. The death of the original franchise holders and internal feuding in the Livingston family left Ogden, who still held a license from the Fulton-Livingston group, in the position of having to defend it in order to maintain the profitability of his own ferries.
If this had been a normal patent case, the Fulton group could have gone into federal court to defend it against infringement by Gibbons and others. But the Fulton patent did not cover all of the technology involved in the steamboat. He had contributed a great deal to the successful design, but as noted earlier, he had built upon the work of others, and there were a number of devices covered by both American and European patents that he had utilized. None of the parties, therefore, wanted to go into federal court to argue about which patents prevailed and who owned them.
In fact, the Fulton-Livingston strategy had always relied less on the technical accomplishments of the inventor and more on the political influence of his partner, Chancellor Robert Livingston. It had been Livingston’s connections, as well as his family’s wealth, that had financed Fulton’s successful development of a workable design and secured the New York monopoly. With Kent’s opinion in Van Ingen, the franchise had seemed impregnable.
Gibbons, however, had a strategy in mind to get around this impasse. Ogden secured an injunction from Kent (now chancellor) in 1816 to prevent Gibbons from operating his steamboats, and Kent also denied Gibbons’s request to move the suit to federal court. Gibbons then secured a coasting license under the Coasting Act of 1793—a license allowing him to operate boats in coastal waters under the jurisdiction of the federal government—and went back to the state court, arguing that the federal license took precedence over New York’s power to regulate the lower Hudson River.
Once again, in Gibbons v. Ogden (New York, 1820) Kent upheld the monopoly, refusing to believe that a simple coasting license, obtained “as a matter of course, and with as much facility as the flag of the United States could be procured and hoisted,” could enable its holder to flout an act of New York’s sovereign legislature. But Gibbons now had his federal question, and he retained the renowned lawyers Daniel Webster and William Wirt to appeal the case to the U.S. Supreme Court. The Supreme Court, however, initially refused to hear the case on the technical grounds that Chancellor Kent’s opinion was not a final decree, and therefore not appealable. The Court of Errors affirmed Kent’s ruling in January 1822, and Gibbons again appealed to the Supreme Court. This time the justices accepted the case, and heard six days of oral argument beginning on February 4, 1824.
Webster began by noting that New York’s law, which had invited retaliatory legislation by Connecticut and New Jersey, imposed just those barriers to interstate commerce that had existed during the confederation and which the Constitution had intended to remove. Unlike taxation, in which the federal and state governments enjoyed concurrent power, the Constitution had granted full power to the national government in this area. If Congress failed to exercise its authority, then the states remained free to act. But Congress had not been silent on this issue; through the 1793 Coasting Act, it had stated its intention to bring coastal trade under federal control. The New York assembly had exceeded its acknowledged power to police trade within its borders, and in effect regulated commerce between states, a power reserved exclusively to Congress. Webster claimed that Gibbons’s coasting license gave him a right to “navigate freely the waters of the United States,” a right that New York now attempted to take away from him.
On behalf of Ogden, former representative Thomas J. Oakley urged the Court to view the regulation of commerce as a concurrent power. While not going as far as some states’ rights advocates did, Oakley also maintained that in 1787 the states had reserved certain powers and had not ceded their sovereignty in all matters to the federal government. Moreover, interstate commerce had always been viewed as the transportation of goods and not, as in this case, the movement of passengers, and thus did not apply. Oakley’s associate, Thomas A. Emmet, the longtime counsel for the Livingston family (who clearly had an interest in the case), then proceeded to list numerous areas that affected interstate commerce and that had always been considered within the purview of the states, such as quarantines, pilotage, lighthouses, turnpikes, and even Indian trade. These had all been pursued for the general welfare of the people, and not only as police measures to protect their health and safety.
Emmet’s arguments led Webster’s colleague, Attorney General William Wirt, to suggest that Webster had never intended that the state have no powers in regulating trade. Although Wirt appeared in court in a private capacity, as counsel to Gibbons, he also spoke for the federal power, and he urged the Court to draw a line between those activities deriving from the commerce power, which were exclusive to the federal government, and those regulations over primarily intrastate commerce growing out of the police powers, which might indirectly affect interstate trade. This compromise position might have pleased the Fulton-Livingston interests, which drew the bulk of their income from activities north of New York City, where the Hudson flowed entirely within state borders. From their point of view, Ogden’s license between New York and New Jersey could easily be sacrificed, providing the monopoly remained intact elsewhere.
The decision came down less than a month later. Chief Justice John Marshall initially approached this case with caution. He had great respect for Chancellor Kent, who had been a leader of the Federalists in New York, and was probably the most prominent and able state judge in the nation. Kent’s lower court opinion could not be cavalierly brushed aside. The commerce clause itself had received practically no judicial explication, and no one knew how far it reached. Marshall, as he did in other cases (see the next chapter), intended to expand and consolidate the powers of the national government. He casually stated it as a “well-settled rule” that enumerated powers, such as federal control over interstate commerce, had to be construed both by the language of the Constitution and in light of the purpose for which they had been conferred. The Article I powers, including control over commerce, had been granted to further the “general advantage” of the whole American people. Although not infinite in its reach, in delegated areas “the sovereignty of Congress, though limited to specified objects, is plenary as to those objects.”
Commerce, a vital aspect of national life, included not just the exchange of goods, but “every species of commercial intercourse” among the states. The key word among meant not only “between” but “intermingled with,” so that the power of Congress did not stop at state lines, but extended into the interiors of the states as well. Reaching all aspects of trade, the congressional power to regulate commerce “[is] complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.” The wisdom of Congress and of the electorate in choosing appropriate policies shaped its exercise.
Marshall no doubt sympathized with Webster’s view of the commerce power as exclusive—that is, solely a function of the federal government—but he recognized that some nod had to be made to at least a limited claim of state sovereignty. His opinion thus held that both state and national governments had concurrent powers over commerce but that the former always had to give way to the latter in case of conflict. Through a broad reading of the Coasting Act of 1793, the chief justice ruled that the statute constituted a guaranty against state interference with interstate commerce. The New York law contradicted this intent, and was therefore void. In an aside, Marshall hinted that the mere grant of the commerce power might have been sufficient to reach this result, even in the absence of a specific congressional statute such as the Coasting Act.
Scholars consider Marshall’s acknowledgment that the states could control commerce that was wholly internal to have been an assurance to the slave states that they could regulate free blacks, slaves, and the slave trade within their borders. The chief justice was reacting to a recent controversy in South Carolina, which had incarcerated a free black sailor when his ship docked in Charleston. Justice William Johnson had written a bitter circuit court opinion in Elkison v. Deliesseline (1823) denouncing South Carolina’s position, and in Gibbons he entered a concurrence that took a stronger position than Marshall on the supremacy of federal power. In fact, one could surmise that Marshall could soft-pedal his usually strong nationalistic view since Johnson, a Jefferson appointee, said it for him.
The Gibbons decision had both immediate and long-range consequences. It proved to be extremely popular, since it broke up what had become an unpopular monopoly and prevented a looming transportation war between the states. Although it diminished state power, it did so in the area of transportation, in which most Americans, even states’ rights localists, wanted a free market. The case treated the nation as a single commercial entity, and prevented states from fragmenting the national economy. The broad interpretation of what constituted interstate commerce permitted the government to adapt its policies to new technologies in transportation and communications, and except for a relatively brief period in the early twentieth century, allowed the continuous expansion of federal regulation over the nation’s commerce, banking, industry, and labor. Beyond that, the analysis applied to the commerce power could be used to expand the scope of the other constitutionally enumerated congressional powers as well.
Three years later, in Brown v. Maryland (1827), the Court again emphasized the national character of commerce when it voided a Maryland statute that imposed a tax on importers of out-of-state goods. Congress had not addressed itself to the issue of taxes (as it supposedly had in the steamboat case with the Coasting Act), and Marshall enlarged on his earlier obiter dicta (comments in an opinion as opposed to a finding of law) that the commerce power by itself might preclude a state from any interference in interstate trade. Although the states still enjoyed authority over primarily intrastate activities, the new demarcation line would be what Marshall dubbed the “original package” doctrine. So long as goods crossing state lines remained in their original packages, they could not be taxed or otherwise regulated by the states, a doctrine that remained in effect for over a century.
For reasons that are not entirely clear, Justice Smith Thompson of New York did not participate in Gibbons. If he had, he might well have dissented, since in Van Ingen he had shown a strong propensity to allow states great control over commerce within their borders. In the Brown case, he did dissent, arguing that once an imported good passed into Maryland’s jurisdiction, it became fully subject to the licensing and taxing laws of that state. In many ways his Brown dissent tracked the same views he had explicated while on the New York court, that a state had full discretion over how it chose to regulate commerce within its borders.
But if Congress had the broad power, the Supreme Court retained the ultimate authority to determine when and if that power had been applied appropriately. In Willson v. Black Bird Creek Marsh Co. (1829), Marshall sustained a Delaware law authorizing damming a creek to keep out marsh waters, even though the creek was navigable and had at times been used in coastal trade. Willson had registered his boat under the same 1793 law as Gibbons, and following the reasoning of the earlier cases, Marshall might have held that the mere existence of either the commerce power or the statute invalidated the Delaware law. But, according to the Court, Congress had not acted specifically in this matter, and thus the Court reserved the right to determine whether congressional silence permitted state action or if the commerce power precluded it.
After the conclusion of the case, Aaron Ogden and Thomas Gibbons continued their personal vendetta, and some sources say that the fight left Ogden near bankruptcy for a while. Ogden ran his steamboat ferry for another few years, and then moved to Jersey City and resumed the practice of law. In 1830 President Andrew Jackson named him to the post of collector of customs for the city, and he served in that post until his death in 1839. The political gene seemed to have been very strong in the Ogden family. His son, Elias, served as a justice of the New Jersey Supreme Court from 1842 to 1865. His grandson, Frederick, was mayor of Hoboken for one term, and his nephew, Daniel Haines, was twice elected as governor of New Jersey.
Thomas Gibbons also abandoned the ferry route and went on to become a very successful businessman, and at the end of his life owned extensive property in South Carolina, Georgia, and New Jersey. Cornelius Vanderbilt, who did business with Gibbons, said, “I think he was one of the strongest minded men I ever was acquainted with; I never knew any man that had control over him.” At the time of Gibbons’s death in 1826, Vanderbilt said that his mind was as capable as ever.
The debate over the meaning of interstate commerce and the extent of federal power in that area has continued to be an issue for which there seems to be no final answer. Seventy years after John Marshall’s very broad interpretation of the commerce clause in the steamboat case, conservative jurists at the end of the nineteenth and in the early twentieth century took a far narrower view, one that gave the federal government a relatively cramped space for economic regulation. That changed in the 1940s, when the Court once again began to view commerce as Marshall had done, and Congress utilized the commerce clause over the next several decades—with the Court’s approval—to justify everything from airline regulation to civil rights legislation. In the 1980s conservative justices tried to impose some limits, and denied that the clause could be used to ban guns on school playgrounds (United States v. Lopez [1995]) or make abuse of women a matter for federal courts (United States v. Morrison [2000]). No doubt the debate will continue into the foreseeable future as Congress and the courts deal with changing modes of commerce, such as the Internet.
Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827)
Elkisob v. Deliesseline, 8 F. Cas. 493 (1823)
Gibbons v. Ogden, 17 Johnson’s Reports 488 (New York, 1820)
Gibbons v. Ogden, 19 U.S. (6 Wheat.) 449 (1821)
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)
Livingston v. Van Ingen, 9 Johnson’s Reports 507 (New York, 1812)
United States v. Lopez, 514 U.S. 549 (1995)
United States v. Morrison, 529 U.S. 598 (2000)
Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Peters) 245 (1829)
The most complete treatments of the case are Herbert A. Johnson, Gibbons v. Ogden: John Marshall, Steamboats, and the Commerce Clause (2010), and the older but still very useful Maurice G. Baxter, The Steamboat Monopoly: Gibbons v. Ogden, 1824 (1972). An extensive examination of the case covering the complex set of commercial, economic, and personal relations involved is Thomas H. Cox, Gibbons v. Ogden, Law, and Society in the Early Republic (2009). To understand the case in the broader context of Marshall Court decisions, see G. Edward White, The Marshall Court and Cultural Change, 1815–1835 (1988), and David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985). The history of the steamboat is well told in Andrea Sutcliffe, Steam: The Untold Story of America’s First Great Invention (2004).
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* There is a debate over exactly what Fulton and Livingston named the boat, with various sources giving the North River Steamboat, the North River, the North Rover Steamboat of Clermont, or simply the Steamboat. Apparently only after the successful voyage did the public start referring to it as the Clermont.