Gibbons v. Ogden: How The Commerce Clause Shapes Interstate Trade

A steamboat monopoly, a federal license, and a constitutional power that still shapes our economy—this is the story of Gibbons v. Ogden told through clear facts and sharp reasoning. We dig into how a seemingly straightforward dispute over navigation between New York and New Jersey became a landmark on the meaning of the Commerce Clause and the reach of federal supremacy.

We walk through the clash of dueling licenses and explain why navigation counts as commerce when routes cross state lines. From there, we unpack Chief Justice Marshall’s move away from “strict construction,” his broader definition of commerce as traffic and intercourse, and his pivotal reading of “among the several states” as intermingled activity that does not stop at border lines. Those words solved the case, but they also set the stage for future fights over railroads, highways, and modern markets that span supply chains far beyond any one state’s boundary.

Then we tackle the language that launched a thousand citations: Marshall’s distinction between national “external” concerns and “completely internal” state commerce. That neat line sounds clear until you ask how often commerce is truly sealed within one state. We show why this dicta mattered, how it influenced twentieth‑century expansions and modern limits, and why the facts here—major rivers, multi‑state routes, and Congress’s explicit licensing law—drive a clean holding of federal preemption. We also mark the boundary between this case and the dormant Commerce Clause, where courts police state burdens on interstate trade when Congress has not acted.

If you care about how federal power keeps a national market from fracturing—whether on rivers, rails, or digital platforms—this conversation gives you a usable map. Enjoy the deep dive, and if it helped clarify a classic case, follow the show, share it with a friend, and leave a quick review to support more clear‑eyed civics.

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Chapters

• 1:33 Setting The Case And Question
• 1:58 Dueling Licenses Explained
• 2:48 Why Interstate Navigation Is Commerce
• 3:56 Marshall’s Framing Of “Strict Construction”
• 5:06 Defining Commerce And “Among The States”
• 6:17 The Slippery Dicta And Its Reach
• 8:24 Federal Supremacy And State Conflicts
• 9:05 Dormant Commerce Clause Clarified
• 10:01 Facts Matter: Rivers Versus Ponds
• 11:10 Unanimity, Eye Rolls, And What’s Next

Transcript

SPEAKER_01: 0:47

Welcome back to Civics in the Year. Today's Supreme Court case is Gibbons v. Ogden. We're looking at some steamboat owners who did business between New York and New Jersey, and there was just kind of a lot of confusion. So Dr. Beinberg is back with us. Dr. Beinberg, does the Commerce Clause give Congress authority over interstate navigation?

unknown: 1:12

Yeah.

SPEAKER_00: 1:12

So the Gibbons v. Ogden case is effectively a question of a set of dueling licenses. We have a state license and we have a federal license to operate effectively a steamboat. And there are different holders of the licenses, and the question is sort of who gets the relevant license. And so in the Gibbons case, the Supreme Court effectively says Congress has the authority to regulate interstate commerce. That's not contested. So the question of that is if that being so, and we think that the congressional law authorizing licenses for again, and these are worth emphasizing, this is not a steamboat to like operate in a little pond in a state, right? These are basically in the ocean, in the rivers, right? Yes, that that's important. And so, in some sense, Gibbons is a fairly straightforward and uncontroversial case where it says if we think that the federal government has this legitimate power, and seemingly even under the strictest definition of interstate commerce, taking boats across oceans in multiple states is like by definition interstate commerce. So, yes, the federal government can do that. And if that's the case, if there's a conflicting state law that interferes with that, then that state law has to get struck down. So Gibbons v. Ogden is not in that sense really that interesting or controversial. Again, it lays out the sort of the case for why the state law is invalid. And so in that case, it's kind of a quasi-sequel to a quasi-sequel to McCullochy, Maryland, like we were we were just talking about in our last our last session. Again, the re in some sense, the interesting wrinkle with Gibbons isn't the result that the federal government has power over interstate commerce and that that includes sort of the transportation networks, is I think fairly unobjectionable. But there are some places where Marshall uses some language that can you can point at different parts of it to get very different uh interpretations, right? So uh he's going through and he he starts by creating this sort of odd, I would say it's a straw man. He says, Do we want strict construction? And he says, if people he says, what do gentlemen mean by strict construction? If they contend only against enlarged construction, which would extend words beyond their natural and obvious import, we should not controvert the principle, right? So if strict construction just basically means like a reasonably faithful application of the terms, then who's going to be against that? And then he says, right, but if they think that it's denying the government the powers of the grant that are sort of the most obvious interpretations of it, then that's obviously wrong, right? So he's sort of parodying strict construction there in way, and this is part of why that term has also fallen out of favor, because it so he says effectively, yeah, we want it to be the powers as fairly understood, which again is fairly unobjectionable. And then he says, okay, so what's that mean? Commerce. And then he says, commerce is traffic, but it's more, it's effectively, you know, he said it's he says inner course, it can scarcely conceive of something that's not part of a commerce if it's navigation, that that's obviously a part of it. Again, that's not that objectionable. And then he says, you know, what does among the several states mean? And here it gets a little dicey because he says the word among means intermingled with. The 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. And there, there's a way in which that seems obvious, right? If you have a steamboat license and you're going like up the Delaware River, and then part of the you know, the river might connect into, you know, hook off into a tributary that's going to be in a state rather than just like the Camden-Philadelphia border, then again, that seems unobjectionable. Or if you know later on, if it's a railroad line, like if you're buying a ticket from Phoenix to Los Angeles, the feds probably should be able to regulate that rather than just like the five seconds that you're crossing over Blythe. For folks who aren't in Arizona, that's you know, that's basically the border of California and Arizona, right? So there's a way in which uh Marshall's point is kind of obvious, but there's language you know, saying that it's intermingled with, seemingly expands it to be just something that's sort of affecting. And then probably the most controversial paragraph is where he says the genius and character of the whole government is that its action is to be applied to external concerns of the nation and internal concerns which affect the states generally, but not those which are completely within a particular state, which do not affect other states, and which it is not necessary to interfere for the purpose of executing some powers of the general government. The completely internal commerce of a state may be considered as reserved for the state itself. So here he's recognizing like the commerce power can't just be used as a grab bag for anything that the feds want to do. But there is some language there when you if you're using an absolute right totally connected to, or you know, it's completely within. This is why I always tell my students don't use absolutes like that. Because he's effectively saying, well, if it's not completely within a state, you know, if there's some, then you can see where there's some wiggle room here. So again, Gibbons is the case like McCulloch that you can point to it in the 20th century and say, ah, commerce means stuff that sort of affects multiple states. Which I guess if you squint in one way is true, but it's sort of intention with the you know fairly understood kind of language in that. So Gibbons is not that interesting in what its outcome is. It is interesting because Marshall is laying out both the fairly orthodox case that the commerce power means that inconsistent federal law, or excuse me, inconsistent state law is trumped by federal law. But there's some, we call it dicta or something like that, which is just sort of other sort of deep thoughts, right? That section I just read is not necessary to decide the case. But Marshall often will sneak stuff in here. And he gets criticized for that really aggressively in his cases, for like saying sort of, all right, here's the actual case, but here's some additional deep thoughts with John Marshall. And that's what he's doing there.

SPEAKER_01: 7:42

So this kind of just establishes that if there is a fight between two states, the federal government decides that, right? Like you kind of brought up California and Arizona. I know that there's a lot of back and forth about water rights in the Colorado River. Arizona doesn't get to decide that. California doesn't get to decide that. It's going to be the federal government.

SPEAKER_00: 8:05

Yeah. I mean, in this case, there's not strictly a fight between the states because it's not like we have one dueling state license and another dueling state license. It's more that the federal government, wanting to avoid that problem, passes a law. I just flag that because there's sort of a separate track of law, which is can the federal government, can the courts strike down state laws that are going to interfere with commerce, even if Congress hasn't acted. That's the so-called dormant commerce clause. That's not what's happening here because Congress has explicitly passed a licensing law. So this is effectively if Congress trying to preempt a fight between the states wants to say, here's effectively how we're going to do it with multi-state commerce. And then a state wants to say, well, no, we want to do this with our state. In this case, you know, this this case would come out potentially quite differently if it's, you know, regulating, you know, Lake, again, I'm just using an Arizona example, like Lake Pleasant or something, right? Under the under the Gibbons doctrine, it's harder for the feds to regulate that. Under modern Supreme Court doctrine, it gets a little different. But but there's the it the facts are really important in this case, which is that it's about it's about major rivers. It's about, it's not just little ponds and that aren't connected to other states. But yeah, this is effectively saying Congress can preempt state, basically commercial wars, state trade wars, if it's again consistent with interstate commerce. Now, what's the interstate is where Gibbons has some slippery language. But the basic, basic parts of this case are fairly, I guess, unanimous, right? There's not a dissent in this one for a reason. So I suspect some of the justices were kind of rolling their eyes at some of the language in there, but whatever. Then they have to write their own paperwork.

SPEAKER_01: 9:52

And that teases us perfectly because kind of later on in this, we're going to do an episode on the commerce clause because there is really more to the commerce clause than just this Supreme Court case. So, Dr. Beinberg, thank you.