Select Page


Speaking through Chief Justice John Marshall, the Court unanimously ruled in Gibbons’ favor and in so doing broadly interpreted Congress’ power under the commerce clause. Marshall began his opinion for the Court by rejecting the argument that the powers given Congress by the Constitution should be interpreted strictly. Next, he turned his attention to the meaning of the word “commerce.” Ogden’s attorney had attempted to limit it only to “traffic, to buying and selling, or the interchange of commodities” and had argued that it did not include navigation. Marshall responded as follows: “Commerce, undoubtedly, is traffic, but it is something more … all America understands, and has uniformly understood, the word ‘commerce’ to comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed.”

Marshall then addressed the meaning of the word “among” in the commerce clause: “The word ‘among’ means intermingled with. A thing which is among others, is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. … Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more states than one.”

Next, speaking of what Congress’ power under the commerce clause actually is, Marshall and the Court interpreted Congress’ power as broadly as it can be interpreted when he wrote: “It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.”

The last question that the Court had to answer, Marshall writes, is: “Can a state regulate commerce with foreign nations and among the states, while Congress is regulating it?” He notes that it had been argued that if a state law came “into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers.” To that argument, Marshall responds: “But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. … In every such case, the act of Congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.”

Section 13 of the Judiciary Act of 1789, he asserts, under which Marbury’s case was brought directly to the Supreme Court under its original jurisdiction, adds to the Court’s original jurisdiction and is therefore in conflict with Article III of the Constitution. Consequently, Marshall concludes, according to Article VI, Paragraph 2, Section 13 is unconstitutional. As a result, he adds, the Supreme Court does not have jurisdiction over the case, and without jurisdiction, no court can hear and decide a case. In what thus amounts to the Court’s only legally binding decision, the Court dismisses Marbury’s case. In other words, the answer to the third question is “No.” In the process of answering this third question, Marshall spells out what may well be the most significant outcome of the case: “It is emphatically the province and duty of the judicial department to say what the law is.”