II.B National Power and Federalism

McCulloch v. Maryland (1819): author and vote

Marshall, 6-0 [check: some sources list 7-0 unanimous]. No concurrences, no dissents.

McCulloch v. Maryland (1819): facts

Second Bank of the U.S. chartered 1816 • Maryland taxes notes of non-state banks • cashier McCulloch refuses to pay • McCulloch loses in state court

McCulloch v. Maryland (1819): the two questions

1. Can Congress charter a bank? 2. Can a state tax it?

McCulloch v. Maryland (1819): holding

Yes / No. Reversed.

McCulloch v. Maryland (1819): reasoning on Congress's power

Implied powers exist; the 10th Amendment omits "expressly" • "It is a constitution we are expounding" • "necessary" = useful, not indispensable (compare "absolutely necessary" in Art. I §10) • Constitution comes from the people, not from the states

McCulloch v. Maryland (1819): the test

"Let the end be legitimate… and all means which are appropriate, which are plainly adapted to that end, which are not prohibited… are constitutional"

McCulloch v. Maryland (1819): reasoning on the state tax

"The power to tax involves the power to destroy" • states cannot burden federal operations (supremacy)

McCulloch v. Maryland (1819): interpretive tools [inferred]

Textual ("necessary" vs "absolutely necessary"; 10th Amendment lacks "expressly") • Structural (Constitution from the people; national supremacy; a part cannot destroy the whole) • Purposive/adaptive ("a constitution we are expounding," must endure)

McCulloch v. Maryland (1819): significance / exam connection

Hamilton's view wins • implied powers • supremacy • 10th Amendment not an independent limit • still the test. NATIONALIST line: broad construction of federal power. Contrast Hammer/Knight/Carter Coal, which read the 10th Amendment as a brake

Which case? "It is a constitution we are expounding"

McCulloch v. Maryland (1819), Marshall

Which case? "The power to tax involves the power to destroy"

McCulloch v. Maryland (1819), Marshall

Which case? "Let the end be legitimate… and all means which are appropriate, which are plainly adapted to that end…"

McCulloch v. Maryland (1819), Marshall

Gibbons v. Ogden (1824): author and vote

Marshall, 6-0 (Johnson concurring: commerce power exclusive)

Gibbons v. Ogden (1824): facts

New York grants the Livingston-Fulton steamboat monopoly • Ogden buys rights • Gibbons runs boats under a federal coasting license • New York enjoins Gibbons

Gibbons v. Ogden (1824): the three questions

1. Does "commerce" include navigation? 2. Does the power reach inside states? 3. Must state law yield?

Gibbons v. Ogden (1824): holding

Yes / Yes / Yes. Reversed.

Gibbons v. Ogden (1824): reasoning

"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse" • "among" = intermingled with; does not stop at the state line • power is "complete in itself, may be exercised to its utmost extent" • only check is political • wholly internal commerce reserved to states • exclusivity has "great force" but not decided • state law collides with the federal license, so it falls under the Supremacy Clause

Gibbons v. Ogden (1824): concurrence

Johnson: the commerce power is exclusive (Marshall left this open)

Gibbons v. Ogden (1824): interpretive tools [inferred]

Textual (defining "commerce," "among," "regulate") • Structural (the check on Congress is political, not judicial; supremacy resolves the collision)

Gibbons v. Ogden (1824): significance / exam connection

Broad definition of commerce • foundation of the modern commerce power • leaves the dormant commerce question open. NATIONALIST line. Starts the exclusivity thread: Willson → Miln → Cooley. Champion (1903) later quotes "complete in itself"

Which case? "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse"

Gibbons v. Ogden (1824), Marshall

Which case? Livingston-Fulton steamboat monopoly vs. a federal coasting license

Gibbons v. Ogden (1824)

Willson v. Black Bird Creek Marsh Co. (1829): author and vote

Marshall, unanimous

Willson v. Black Bird Creek Marsh Co. (1829): facts

Delaware authorizes a company to dam a small tidal creek to drain a marsh • Willson's federally licensed sloop breaks the dam • company sues for trespass

Willson v. Black Bird Creek Marsh Co. (1829): constitutional question

Does a state law obstructing a navigable creek violate the Commerce Clause when Congress is silent?

Willson v. Black Bird Creek Marsh Co. (1829): holding

No. Affirmed.

Willson v. Black Bird Creek Marsh Co. (1829): reasoning

Draining the marsh improves property and health, reserved to states • obstruction is "an affair between the government of Delaware and its citizens" • would be void if Congress had legislated, "but Congress has passed no such act" • not repugnant to the commerce power "in its dormant state"

Willson v. Black Bird Creek Marsh Co. (1829): interpretive tools [inferred]

Structural / federalism (reserved state power over local health and property) • Congressional silence matters (dormant commerce power does not by itself void the state law)

Willson v. Black Bird Creek Marsh Co. (1829): significance / exam connection

First dormant commerce clause case • Marshall himself allows state regulation absent federal law • softens Gibbons. DUAL-FEDERALISM leaning: state police power survives when Congress is silent. Contrast Gibbons (federal license present, state law falls)

Which case? A dam across a tidal creek, a federally licensed sloop, "in its dormant state"

Willson v. Black Bird Creek Marsh Co. (1829), Marshall

New York v. Miln (1837): author and vote

Barbour, 6-1 (Story dissent; Thompson and Baldwin concur)

New York v. Miln (1837): facts

New York law requires ship masters to report every arriving passenger's name, birthplace, age, occupation • $75 penalty each • ship Emily arrives with 100 unreported passengers • city sues consignee Miln

New York v. Miln (1837): constitutional question

Is this a regulation of commerce (federal) or of police (state)?

New York v. Miln (1837): holding

Police. Valid. Act constitutional.

New York v. Miln (1837): reasoning

Refuses to decide exclusivity • purpose is to keep out paupers • state has "the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation" • police power "complete, unqualified and exclusive" • persons are not subjects of commerce (later overruled) • no collision with federal passenger acts

New York v. Miln (1837): concurrences and dissent

Thompson concurs: power is concurrent • Baldwin concurs • Story dissents: it IS commerce, the power is exclusive, and Marshall agreed before he died

New York v. Miln (1837): interpretive tools [inferred]

Purpose of the law (police purpose, not commercial) • Structural analogy (state as sovereign like a foreign nation within its borders) • Avoidance (refuses to decide exclusivity)

New York v. Miln (1837): significance / exam connection

Taney Court's first commerce case • broad state police power • exclusivity left open a third time, until Cooley (1851). DUAL FEDERALISM: state sovereignty over persons and things within its limits. Contrast Gibbons (Marshall's broad national commerce) and Story's dissent

Which case? Ship masters must report every arriving passenger; "the same undeniable and unlimited jurisdiction… as any foreign nation"

New York v. Miln (1837), Barbour

Scott v. Sandford (1857): author and vote

Taney, 7-2 (McLean, Curtis dissent; nine opinions; six concurrences)

Scott v. Sandford (1857): facts

Scott, a slave, taken to Illinois and Wisconsin Territory (free under the Missouri Compromise), returned to Missouri • sues for freedom • loses in Missouri Supreme Court • ownership moved to Sanford of New York for a federal diversity suit • Sanford says Blacks cannot be citizens

Scott v. Sandford (1857): the three questions

1. Can a Black person be a U.S. citizen able to sue? 2. Can Congress bar slavery in the territories? 3. Did Illinois residence free him?

Scott v. Sandford (1857): holding

No / No / No. Reversed; dismissed for want of jurisdiction.

Scott v. Sandford (1857): reasoning

Citizens = the "sovereign people" at the founding; Blacks "not included" (originalism) • "no rights which the white man was bound to respect" • Territory Clause limited to 1787 territory • slave property "expressly affirmed" and protected like any property, so the Missouri Compromise is void • status on return governed by Missouri law (Strader)

Scott v. Sandford (1857): dissents

McLean, Curtis: free Blacks were citizens in 1787 • Congress has regulated territories since the Northwest Ordinance

Scott v. Sandford (1857): interpretive tools [inferred]

Originalist / historical (who counted as "the people" in 1787) • Textual (Territory Clause read narrowly; slave property "expressly affirmed") • Early substantive due process (property protected against Congress)

Scott v. Sandford (1857): significance / exam connection

"Self-inflicted wound" • second law struck since Marbury • first substantive due process • fuels secession • reversed by the 13th and 14th Amendments • wrecks the Court's prestige for a generation. Limits on FEDERAL power over territories (dual-federalist result); contrast McCulloch's broad implied powers

Which case? "no rights which the white man was bound to respect"

Scott v. Sandford (1857), Taney

Which case? Missouri Compromise held void; a "self-inflicted wound"

Scott v. Sandford (1857)

II.B commerce line: Gibbons → Willson → Miln. What is the through-line?

Gibbons: broad definition of commerce, power "complete in itself," but exclusivity left open. Willson: state may act when Congress is silent (dormant state). Miln: state police power over persons within its borders is "complete, unqualified and exclusive"; exclusivity still undecided until Cooley (1851)

II.B national power: what do McCulloch and Gibbons share?

Both Marshall, both unanimous, both read federal power broadly (implied powers / "complete in itself"), both rest on the Constitution coming from the people and on national supremacy over conflicting state law. Together they are the NATIONALIST foundation later invoked in Champion and after 1937