The Interbellum Constitution, page 49
The attorneys for the city emphasized three main points in support of the validity of New York’s Passenger Act. First, they noted, the states had traditionally and uncontroversially held such powers. Blount cited a lengthy list of regulations that states had routinely passed since the 1780s, with categories including “quarantine laws,” “passenger laws,” “pilot laws,” “wreck laws,” “laws relating to coloured passengers and seamen,” and “harbour regulations.”67 It was the “immense mass of legislation” argument from Gibbons all over again.
Second, the city’s lawyers made a categorical claim: the New York law, like the other laws in Blount’s list, was “not a commercial regulation in the sense contemplated in the constitution; but a police regulation.” Correctly understood, the New York law was “part of the system of poor laws.” Blount made the connection to public safety explicit, invoking an array of what his audience would recognize as threats to municipal order: “[T]he law in question is altogether a police regulation: as much so as laws prohibiting entrance into a walled city after dark; laws prohibiting masters from bringing convicts into the state; or the laws prohibiting free negroes from being introduced among slaves.”68
Each of Blount’s examples in this passage concerned persons moving into areas where they were not supposed to be. They also alluded to perils that the police power was intended to address in the specific context of cities and densely populated areas.69 Entrance into a walled city after dark was clearly such an example, albeit a medieval one. But the reference to “free negroes … being introduced among slaves” was also a particular concern for white urbanites. As we have seen, urban slaveholders constantly feared that the proximity between free and enslaved Black people would lead to the fomenting of revolts. In Charleston, for example, where the Vesey conspiracy had unfolded in 1822, slave quarters and work yards were squeezed into city-scaled lots. Kitchens, stables, laundries, and magnolia-planted allées tended by enslaved workers abutted alleyways traversed by free people of color. Port cities, too, were notorious nests of radicalism.70 The police power was a necessary tool to be wielded by municipal authorities, who understood the special dangers posed by certain groups of mobile individuals.
Finally, the city’s lawyers insisted that the power to regulate commerce was not exclusively vested in the federal government but rather was shared by the states. This was again a theory of concurrent commerce power, akin to that offered by the lawyers arguing on behalf of the state grant in Gibbons and other previous cases. The key to this argument was that the domain of commerce was shared, or concurrent, between the regulatory authorities of the federal government and those of the state, subject to the limitation that followed from the Supremacy Clause of the Constitution: the state regulation could not interfere with federal power already exercised over the subject in question. With this conceptual ground laid, the city then had to demonstrate that the New York law did not actually conflict with federal law, in particular Congress’s passenger act of 1819.
Ogden labored especially hard to show that no such collision existed. Taking “conflict” to mean “incompatibility,” Ogden insisted that the laws were compatible and could coexist. “All the provisions of the laws of the United States are left in full force,” Ogden maintained. The New York law merely “superadds other regulations, deemed necessary for the prevention of the introduction of paupers, and to prevent the city being charged with the support of the outcast population of foreign nations.”71 Again, the threat was especially acute for cities.
Ogden also indulged in a bit of overt ad hominem nativism against the Scottish-born Miln. “The defendant states himself to be an alien,” he observed. “[B]ut it is a fact worthy of notice, that, although a stranger among us, he has undertaken to teach us constitutional law.”72 New York had not been so finicky in its aversion to foreign-born lawyers just thirteen years before. In Gibbons, the claimant under the New York monopoly had been represented by Thomas Addis Emmet, a native of Cork, Ireland; a known associate of Irish revolutionaries; a onetime New York attorney general; and later a state judge. In an earlier round of Miln, Emmet’s son Robert had represented the city before the federal circuit court.
Miln’s lawyers, Jones and White, attacked the city’s arguments along two main fronts. First, they portrayed the New York Passenger Act as in direct conflict with the federal Steerage Act. Second, they fought back against the city’s portrayal of the state law as fundamentally local, aimed at addressing the special problems of cities, and thus following in a long line of police power regulations.73
Fundamentally, Miln’s lawyers were challenging the city’s vision of how jurisdictional multiplicity ought to be applied in this arena. The city insisted that the Passenger Act fit comfortably within the ambit of the municipal level of government. It was a state law designed to give local authorities control over their port—as the refrain of “the mayor, aldermen, and commonalty” suggested. It was about regulating articles of commerce and people in commerce. Miln’s attorneys, in contrast, invoked a vision more akin to Gibbons’s Commerce of the Union. Jones focused on the impact of the New York law on both interstate and foreign commerce, arguing that it
interferes with a very important part of the commercial operations of the country; it affects the employment of the ships and vessels of other states, besides those of New York; it goes across the ocean, and interferes there with the operations of packet ships, prescribing the description of persons who may be brought on board of them; and subjecting the masters and owners of the vessels to duties and liabilities, which do not exist under the laws of the United States, and cannot therefore be imposed by a state law.74
The state law “affects the navigation of all countries, as connected by their commerce with this country.” New York City was not just another port or another town, Miln’s lawyers insisted. It was “the great throat of emigration.”75
Less than three weeks after the Miln arguments concluded, on February 16, 1837, the Court handed down its decision. Justice Barbour wrote for the Court, upholding the New York Passenger Act. A state could constitutionally regulate passengers arriving in its ports from out of state or from outside the United States. Justice Story filed a dissenting opinion.
Barbour’s opinion avoided the question whether the commerce power was exclusively held by the federal government. Webster’s gambit in the Gibbons arguments, and Marshall’s open-ended musing in his opinion in that case, remained unsettled to dog the doctrine for another fifteen years. Citing the “internal mass of legislation” language that had come from Webster and Wirt’s opponents Emmet and Oakley in Gibbons, Barbour likened the state law to “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state.”76
The potential for collision with federal law still might be a concern, but the principal analysis was now to categorize the nature of the power at work. The New York Passenger Act, Barbour wrote, “is not a regulation of commerce, but of police; and … being thus considered, it was passed in the exercise of a power which rightfully belonged to the states.”77 The regulation of passengers who had entered New York was a fundamentally internal affair, Barbour insisted. It was not navigation; it was not intercourse; it was not the Commerce of the Union. It was simply the state exercising its long-established customary powers.
The most controversial point of Barbour’s opinion was the one that addressed an issue that no one else appeared to have contemplated raising. Barbour argued that the subjects of the New York law were the passengers themselves. Since persons could not be considered articles of commerce, he contended, they could not be reached by the federal commerce power. After comparing Miln with Brown v. Maryland, in which the Court invalidated a state licensing requirement on the sale of imported cloth because the license interfered with the federal commerce power, Barbour rejected the analogy. In Brown, the goods “were the subjects of commerce.” That was all well enough for goods, Barbour opined. “But how can this apply to persons? They are not the subject of commerce; and, not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to congress to regulate commerce, and the prohibition to the states from imposing a duty on imported goods.”78
Barbour’s statement appears bizarre to modern eyes. Was it really possible for a justice of the Supreme Court in 1837—one who came from a family of wealthy Virginia slaveowners, no less—to be so amazed that anyone might think that persons were the subjects of trade and commerce?79 Or was Barbour referring to commerce in its specific constitutional sense, as the commerce that could be regulated by Congress?
Here again, Miln stood at the confused nexus among the legal regimes governing slavery, indentured servitude, and immigration.80 Some scholars regard Barbour’s opinion as evidence of the blunt version of the “because of slavery and states’ rights” argument. On this understanding, Barbour was perfectly comfortable categorizing enslaved people as subjects to be bought and sold. His view, which he presented as both descriptive and normative, allowed for commerce in persons. But he could not, or would not, make the conceptual move of linking the buying and selling of persons with a constitutionally significant commerce in persons because to do so would be to open the path for federal regulation of slavery and the interstate slave trade. Therefore, he adopted the disorienting and cynical view expressed in Miln. Persons were not subjects of commerce, in the constitutional sense. Therefore, federal power did not reach them, and states were free to regulate—and, crucially, exclude—such persons as they saw fit.
Barbour’s fellow justices seemed perplexed by his assertion that persons were not subjects of commerce. Thompson, who had heard Miln in its many iterations while on circuit, wrote a concurring opinion upholding the New York law as an exercise of concurrent state power over commerce.81 Thompson also expatiated on the timing, form, and scope of the certificate of division that had brought the case before the Court, a set of topics that he was, of course, uniquely qualified to address.82
Story dissented, offering a robust defense of federal power over the Commerce of the Union. He dismissed as “impossible” Thompson’s theory of concurrent state and federal power over commerce. Such a view would, Story said, amount to a recognition of “the double operations of distinct and independent sovereignties.”83 Jurisdictional multiplicity was of course a fact of the Union. But “supremacy” and “uniformity” remained Story’s watchwords. In case anyone doubted the conviction with which Story held to these principles, he pronounced a closing benediction upon himself: “In this opinion I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall.”84 Not only did Story cite Marshall’s support for his own views; Story made so bold as to serve as medium for the late chief justice himself.85
Miln was a case about legacies. It was haunted by the arguments, decisions, and possibilities left open by Gibbons. It had once been touched by the hand of Marshall, and that hand reached forward, via Story’s pen, to visit praise on Story and condemnation on Barbour, Thompson, and the rest of the Court.
Commerce and People, Commerce in People: The Argument Deepens
A dozen years after Miln was decided, its legacy remained unsettled. In the Passenger Cases of 1849, in which the justices faced an analogous set of state laws known as “alien taxes,” the meaning of Miln—in particular, how it had or had not changed Gibbons—continued to be so unstable that it required a gloss from the Court. In a bravura display of using whatever means were available to criticize colleagues past and present, to cast doubt on the reporting process, and to skewer the Court’s internal norms, Justice Wayne unleashed a fusillade of revelations that signaled how deeply divided the Court remained over Miln.
In his concurring opinion in the Passenger Cases, Wayne announced that at the time of Miln, a four-justice majority of what was then a seven-member Court had in fact disagreed with Barbour’s view that commerce did not comprehend “the intercourse of persons or passengers.” In other words, four justices believed that commerce did include persons. Barbour had added that language at the last minute and without adequate consultation, according to Wayne. Four justices had also concluded that the commerce power was exclusive in the federal government. But Peters’s report had inadvertently omitted Baldwin’s opinion, and Taney had called Wayne’s recollections into question. Taking all these circumstances into account, Wayne stated, the putative opinion of the Court in Miln was in fact supported by only two votes: Barbour’s and Taney’s.86
Wayne clearly felt that Miln had left the doctrine in such disorder that a public clarification was required. “I have made this narrative and explanation, under a solemn conviction of judicial duty, to disabuse the public mind from wrong impressions of what this court did decide in that case,” he wrote.87 It was an astonishing and stark view of the thorny inner workings of the Court. Much had changed since the collegial days of the Marshall Court.
As the lingering aftershocks of Miln suggest, the eight-year travails of the case marked a transition between the Marshall and the Taney courts. It was understood to be so by the justices and by the wider public. The next set of cases in which the Court confronted jurisdictional multiplicity through the lens of the commerce power took place against a dramatically different backdrop of politics, war, and foreign affairs.
The Angry Forties
The 1840s were a tortured and tumultuous decade worldwide. Revolutions shook Europe; Karl Marx and Friedrich Engels’s Communist Manifesto announced a new vision of economics and society; and the crop failures and famine of the “Hungry Forties” ravaged many countries, with the most brutal effects in Ireland. Between 1845 and 1849, the Great Famine and its accompanying diseases killed one million people and drove one million more to emigrate, reducing Ireland’s population by between 20 and 25 percent. Large numbers of those migrants took passage to America, especially to New York City and Boston.88
Additional upheavals roiled the United States, even as the nation expanded and claimed lands from a variety of other nations, both settler and Indigenous. The annexation of Texas in 1845 placed the issue of slavery’s expansion squarely at the center of political debate. President James K. Polk, the handpicked heir to Andrew Jackson derided as the “dark horse” because of his sudden rise to Democratic Party leadership in 1844, followed his Texas triumph with a war against Mexico that lasted from 1846 to 1848.89 At the end of these explicitly expansionist efforts, the United States gained control of territory that became the states of Texas, California, Nevada, New Mexico, Arizona, Utah, Washington, and Oregon, in addition to areas later within the states of Oklahoma, Colorado, Kansas, Wyoming, and Montana.
At the outset of the Mexican-American War, Congressman David Wilmot of Pennsylvania had offered on the floor of the House a controversial proposal to ban slavery in lands acquired from Mexico. The Wilmot Proviso, as it became known, was ultimately voted down. But its effects endured for decades. It emboldened antislavery and abolitionist activists, inflamed proslavery forces, split the Democratic Party, and deepened sectional rifts that had just barely been contained by the party system for the past decade. In America, the appetite driving the Hungry Forties was not only that of the working classes for bread but also the keener gnaw of the southern plantocracy for control beyond the boundaries of their own states. They were not unopposed, however. In Rochester, New York, in 1847, Frederick Douglass—recently returned from two years in Britain and Ireland—launched his first abolitionist newspaper, the North Star.
The Supreme Court was also in a period of transition in the 1840s. In 1837, at the behest of outgoing president Jackson, Congress added two new circuits to the federal courts and expanded the Court by two seats, for a total of nine justices. Death claimed four of the justices who had decided Miln: Barbour in 1841, Thompson in 1843, Baldwin in 1844, and Story in 1845. They were replaced by Peter V. Daniel, Samuel Nelson, Robert C. Grier, and Levi Woodbury, respectively. The two new seats were occupied by a brace of Van Buren appointees: John Catron and John McKinley. Of the bench that had decided Miln, only three remained: Taney, McLean, and Wayne.
The Passenger Cases were first argued before the Court in 1845, although they had been on the docket since 1843. By the time the Court handed down its decision in 1849, comprising eight separate opinions and no opinion of the Court, much had changed—both in the basement courtroom at the Capitol and in the wider world. The long era of Marshall had receded into the past, and the age of Jackson had been supplanted by a fractured political landscape dotted with Whigs, Free Soilers, and such exotic species as Barnburners, Young Americans, and Know-Nothings. Arguments about commerce were still central to these reframed controversies. Over the course of the decade, however, most of the participants came to abandon any notion of defining and protecting the “Commerce of the Union” as a holistic, normative goal.
Yet several links connected the constitutional and political strife of these “Angry Forties” with the commerce conflicts of the twenties. One such link came in the person of one who exerted a profound influence in both the political and legal spheres, as well as in the executive and legislative branches of the federal government, until his death in 1852: Daniel Webster of Massachusetts.
Webster’s career as a lawyer and statesman attracted encomia from many of his contemporaries. He was “the completest man,” according to Ralph Waldo Emerson. Other awestruck observers called him “Black Dan,” inspired by one of his brooding, tousle-haired portraits, and “Godlike Webster.”90 His 1830 speech in reply to Senator Robert Y. Hayne of South Carolina, in which Webster denounced the doctrine of nullification, has been deemed the most famous speech in the history of the Senate, memorialized in an epic painting, and quoted in generations of schoolhouse recitations: “Liberty and Union, now and forever, one and inseparable!”91
