The Commerce Clause under Marshall, Taney, and Waite

By Ira Helderman

The power of the commerce clause touches most intimately the relations between government and economic enterprises, and the process by which the conflicting claims of the nation and states are mediated through the Supreme Court is of continuing interest. This study is a clear exposition of the various interpretations of the commerce clause under three great chief justices. Originally published in 1937.

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• Language: English
• Publisher: The University of North Carolina Press
• Release date: Feb 1, 2018
• ISBN: 9781469632445

Ira Helderman

Ira Helderman, a psychotherapist in private practice, holds a Ph.D. in religious studies and is an adjunct assistant professor in the Department of Human Development Counseling at Vanderbilt University.

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Introductory

ON MARCH 2, 1824, the Supreme Court of the United States for the first time¹ pronounced upon the scope of national authority and the limitations upon the states implied in the power conferred upon the Congress to regulate Commerce with foreign Nations and among the Several States. This power touches most intimately the relations between government and economic enterprise. The process by which the conflicting claims of the nation and the states, in this profoundly important phase of the distribution of power under our federal system, are mediated through the Supreme Court has thus been in actual operation for 112 years. Approximately one half of this process of adjudication was under the leadership of three judges—Marshall, Taney, and Waite. The periods of these three Chief Justiceships constitute a coherent evolutionary process, for the decade of Chase, intervening between Taney and Waite, is primarily significant for the disposition of other issues than those arising under the commerce clause.

If the Thames is liquid history, the Constitution of the United States is most significantly not a document but a stream of history. And the Supreme Court has directed the stream. Constitutional law, then, is history. But equally true is it that American history is constitutional law. The magistracies of Marshall and Taney and Waite are vital chapters in the life of our people. As such they have great cultural claims. But the cross-currents of ideas which underlie decisions of Marshall’s Court, and Taney’s, and Waite’s, in the application of the commerce clause, have persisting vitality. They are part of that stream of history which flows into the waters of contemporary adjudications. Unless we know this history, we may unwittingly—to change the figure—be imprisoned by it. Law necessarily expresses the pressures of the past, and the basic inquiry of any self-conscious jurisprudence is the extent to which it should do so. … history 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 enforcing answers any new purpose when it has ceased to answer the old. ² About the same time that Mr. Justice Holmes spoke these words, his brilliant English compeer, Maitland, expressed a similar insight. Now-a-days we may see the office of historical research as that of explaining, and therefore lightening, the pressure that the past must exercise upon the present, and the present upon the future. To-day we study the day before yesterday, in order that yesterday may not paralyse to-day, and to-day may not paralyse to-morrow. ³

To these general observations American constitutional law gives special salience. The constitutional law of each generation absorbs or rejects not only the history of the constitutional law that has preceded; it likewise absorbs or rejects much of the country’s entire past. More than any other branch of law, the judicial application of the Constitution is a function of the dominant forces of our society. Their impact on the process of constitutional adjudication has never been analyzed with more luminous authority than in these few sentences by James Bradley Thayer:

… The study of Constitutional Law is allied not merely with history, but with statecraft, and with the political problems of our great and complex national life.

In this wide and novel field of labor our judges have been pioneers. There have been men among them, like Marshall, Shaw, and Ruffin, who were sensible of the true nature of their work and of the large method of treatment which it required, who perceived that our constitutions had made them, in a limited and secondary way, but yet a real one, coadjutors with the other departments in the business of government; but many have fallen short of the requirements of so great a function. Even under the most favorable circumstances, in dealing with such a subject as this, results must often be tentative and temporary. Views that seem adequate at the time, are announced, applied, and developed; and yet, by and by, almost unperceived, they melt away in the light of later experience, and other doctrines take their place.⁴

One need not subscribe to the hero theory of history to recognize that great men make a difference, even in the law. The preoccupation of these essays is with the direction which Marshall, Taney, and Waite gave to the law of the commerce clause. Such an analysis does not imply that the ideas of these judges had no genealogy, nor does it deny that great judges as well as small are the agents of inherited traditions. But the course of law would have been different if Kenyon rather than Mansfield, Brougham rather than Eldon, Lansing rather than Kent had presided over their courts during the crucial periods of their respective tenures. All the more vital is the influence of individual judges in the development of public law. The influence of personalities is most far-reaching when a court’s dominant function is the adjustment of conflicts touching the most sensitive economic and political forces within a federal system. That Marshall rather than Roane was Chief Justice, that Wolcott was rejected and Story confirmed, that Waite rather than Conkling headed the Court before which came Munn v. Illinois, surely made differences vital to the course of American history.

If individual judges impinge enduringly upon history, they do so partly because of their influence upon their brethren. To single out the careers of three Chief Justices does not imply that the Supreme Court is merely the sounding board of any judge, however great. Marshall himself, hard-headed as he was and free from obvious self-deception, would doubtless be greatly amused by the claim that he was the whole of his Court. In William Johnson, a much neglected figure, Marshall had a colleague of intellectual independence and power. At least two other members of Marshall’s Court, Bushrod Washington and Joseph Story, must have had views of their own in their boarding-house conferences. And Taney and Waite also had colleagues—the extent and quality of whose contributions are hardly disclosed by the Supreme Court Reports or revealed by historical inquiry. The reduction of history to the efforts of a very few personalities is an expression of the ineradicable romantic element in man. We want to dramatize life, and also to simplify it. But there are special reasons why all but a handful of men on the roll of the Supreme Court justices should be caviar to the general. Public manifestations of the individual qualities of judges are relatively restricted; they are confined to revelations of personality through opinions, and these too often do not mirror simply the mind of the author but are a composite picture of the Court. Of course illumination can be had from sources other than opinions. But American legal history has done very little to rescue the Court from the limbo of impersonality. A full-length analysis of only two or three of the seventy-eight Supreme Court justices has been attempted. Yet not less than a dozen had a major share in shaping the doctrines by which American constitutional law has been moulded. Until we have penetrating studies of the influence of these men we shall not have an adequate history of the Supreme Court, and, therefore, of the United States.

However, a Chief Justice fills the popular and professional imagination as the symbol of the Court; and since Marshall’s time his successors have come into the inheritance of a great tradition. Moreover, as head of the Court, a Chief Justice in fact wields great authority over its internal administration. The extent to which complicated and subtle issues are effectively explored at argument, the thoroughness with which they are canvassed at conference, and the ripeness of judgment which is the fruit of serene and brooding deliberation—all these indispensable requisites of wise adjudication, especially in a domain of thought so close to statecraft as constitutional law, are largely