Gibbons v. Ogden

“ The Supreme Court itself has said (Fargo v. Michigan, 121 U.S. 230) that “it may be admitted that the court has not always employed the same language, and that all of the judges of the court who have written opinions for it may not have meant precisely the same thing.” Though in the period just preceding the Civil War the doctrine of states’ rights tended to weaken somewhat the federal power, the broad outlines of the interpretation by Chief Justice Marshall laid down in 1824 in Gibbons v. Ogden remain to-day almost undimmed. ”

“ Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K. & T. R. Co. v. Haber, 169 U.S. 613, 626, 42 L. ed. 878, 882, 18 Sup. Ct. Rep. ”

“ It is impossible, with the views which I entertain of the principle on which the commercial privileges of the people of the United States among themselves rests, to concur in the view which this Court takes of the effect of the coasting license in this cause. I do not regard it as the foundation of the right set up in behalf of the appellant. If there was any one object riding over every other in the adoption of the Constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints. ”

“ A litigant has standing to contend that proper allocation of power requires a particular outcome in a dispute, and this is so whether the dispute is between individual parties, see Gibbons v. Ogden, 9 Wheat. ”

“ It follows from the enumeration of specific powers that there are boundaries to what the Federal Government may do. See, e.g., Gibbons v. Ogden, 9 Wheat. 1, 195 (1824) ("The enumeration presupposes something not enumerated...") . The Constitution "withhold [s] from Congress a plenary police power that would authorize enactment of every type ”

“ The words of the constitution are to be taken in their obvious sense, and to have a reasonable construction. In Gibbons v. Ogden, Mr. Chief Justice Marshall, wt h his usual felicity, said: 'As men whose intentions require no concealment generally employ the words which most directly and aptly EXPRESS THE IDEAS THEY INTEND TO CONVEY, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.' 9 Wheat. ”

“ Gibbons v. Ogden, 9 Wheat. 203, 6 L. ed. 71; Turner v. Maryland, 107 U.S. 38, 27 L. ed. 370, 2 Sup. Ct. Rep. 44; Plumley v. Massachusetts, 155 U.S. 461, 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154 ”

“ Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803) , or Ogden seeking an injunction to halt Gibbons' steamboat operations. ”

“ If they instead continued their normal activities, they would still be fearful, but whether they would actually be subject to surveillance is purely speculative. They are like the Lyons plaintiff who can show nothing more than a fear of the use of a chokehold. See Laidlaw, 528 U.S. at 184 (discussing the "'subjective apprehensions' that such a recurrence would even take place" in Lyons) . By contrast, if the Laidlaw plaintiffs had resumed their abandoned activities, they would definitely have been subject to the defendant's conduct-illegal discharges into the river. ”

“ Marshall’s later opinion in Gibbons vs. Ogden is, it is true, in some respects a greater intellectual performance, but it does not equal this earlier opinion in those qualities of form which attract the amateur and stir the admiration of posterity. ”

“ In the absence of adjudged cases determining how far the government may be responsible on an implied assumpsit for acts which, though unauthorized, may have been done in its interest, and of which it may have received the benefit, the apparent hardships of many such cases present strong appeals to the courts to indemnify the suffering individual at the expense of the United States. ”

“ The plaintiffs in that case alleged three different kinds of injuries: (1) "the 'chilling' of constitutionally protected activities," United Presbyterian Church, 738 F.2d at 1377; (2) "the immediate threat of being targeted for surveillance," id.; and (3) direct injury from surveillance taken against them, id. at 1380 & n.2. As the plaintiffs in this case have no evidence that they have ever been subject to the TSP, Judge Gilman correctly distinguishes the D.C. Circuit's reasoning on the third alleged injury. ”

“ The Laidlaw majority's discussion of Lyons and its observations about the Laidlaw plaintiffs explain exactly why plaintiffs here are like the plaintiff in Lyons, who lacked standing, and unlike those in Laidlaw, who had standing. Like the plaintiffs in Laidlaw and Lyons, the plaintiffs in the present case may have a reasonable fear of harm from the defendants' conduct. See id. at 184-85 (finding plaintiffs' fear of "economic and aesthetic harms" from "illegal discharges of pollutants" to be "entirely reasonable") ”

“ In framing an instrument, which was intended to be perpetual, the presumption is strong, that every important principle introduced into it is intended to be perpetual also; that a principle expressed in terms to operate in all future time, is intended so to operate. But if the construction for which the plaintiff's counsel contend be the true one, the constitution will have imposed a restriction in language indicating perpetuity, which every State in the Union may elude at pleasure. The obligation of contracts in force, at any given time, is but of short duration ”

“ The States are forbidden to pass any bill of attainder or ex post facto law, by which a man shall be punished criminally or penally, by loss of life, of his liberty, property, or reputation, for an act which, at the time of its commission, violated no existing law of the land. Why did the authors of the constitution turn their attention to this subject, which, at the first blush, would appear to be peculiarly fit to be left to the discretion of those who have the police and good government of the State under their management and control? ”

“ If the law, whatever it may be, relating to the remedy, has a prospective operation only, no objection can arise to it under this clause in the constitution. It is a question that must rest in the sound discretion of the State legislature. But men, when entering into contracts, can hardly be presumed entirely regardless of the remedy which the law provides in case of a breach of the contract ”

“ They can enter into no contract which the laws of that community forbid, and the validity and effect of their contracts is what the existing laws give to them. The remedy is no longer retained in their own hands, but surrendered to the community, to a power competent to do justice, and bound to discharge towards them the acknowledged duties of government to society, according to received principles of equal justice. The public duty, in this respect, is the substitute for that right which they possessed in a state of nature, to enforce the fulfilment of contracts ”

“ So much of this prohibition as restrains the power of the States to punish offenders in criminal cases, the prohibition to pass bills of attainder and ex post facto laws, is, in its very terms, confined to pre-existing cases. A bill of attainder can be only for crimes already committed; and a law is not ex post facto, unless it looks back to an act done before its passage. Language is incapable of expressing, in plained terms, that the mind of the Convention was directed to retroactive legislation. ”

“ Its language is the language of restraint, not of coercion. It prohibits the States from passing any law impairing the obligation of contracts; it does not enjoin them to enforce contracts. Should a State be sufficiently insane to shut up or abolish its Courts, and thereby withhold all remedy, would this annihilation of remedy annihilate the obligation also of contracts? We know it would not. If the debtor should come within the jurisdiction of any Court of another State, the remedy would be immediately applied, and the inherent obligation of the contract enforced. ”

“ Nevertheless, though legal, though thus independently existing, though thus binding the party every where, and capable of being enforced every where, yet, the statute of New-York says, that it shall be discharged without payment. This, we say, impairs the obligation of that contract. It is admitted to have been legal in its inception, legal in its full extent, and capable of being enforced by other tribunals according to its terms. An act, then, purporting to discharge it without payment, is, as we contend, an act impairing its obligation. ”

“ Gentlemen are struck with the enormity of this result, and deny that their principle leads to it. They distinguish, or attempt to distinguish, between the incorporation of a general law, such as has been stated, and the incorporation of a particular law, such as the insolvent law of New-York, into the contract. But will reason sustain this distinction? They say, that men cannot be supposed to agree to so indefinite an article as such a general law would be, but may well be supposed to agree to an article, reasonable in itself, and the full extent of which is understood. ”

“ Nor does the petition of the plaintiff say anything about an arrest, or force, or duress. That he feared the officer might buy the oats in the market and hold back the difference in price from the money due for oats already delivered, does not invalidate the contract which he consented to fulfil to avoid that result. He could still have refused, and the government would have paid him what it owed him.
The supposition that the government will not pay its debts, or will not do justice, is not to be indulged. ”

“ Nor is it immaterial as an historical fact, to show the evils against which the constitution really intended to provide a remedy. Indeed, it is a solecism to suppose, that the permanent laws of any government, particularly those which relate to the administration of justice between individuals, can be radically unequal or even unwise. It is scarcely ever so in despotic governments; much less in those in which the good of the whole is the predominating principle. The danger to be apprehended, is from temporary provisions and desultory legislation ”

“ The right of coercion is necessarily surrendered to government, and this surrender imposes on government the correlative duty of furnishing a remedy. The right to regulate contracts, to prescribe rules by which they shall be evidenced, to prohibit such as may be deemed mischievous, is unquestionable, and has been universally exercised. So far as this power has restrained the original right of individuals to bind themselves by contract, it is restrained ”

“ The law affords remedy by giving execution against the person, or the property, or both. The same power which can withdraw the remedy against the person, can withdraw that against the property, or that against both, and thus effectually defeat the obligation. The constitution, we are told, deals not with form, but with substance; and cannot be presumed, if it designed to protect the obligation of contracts from State legislation, to have left it thus obviously exposed to destruction. ”

“ United States
The facts found by the Court of Claims show, that under the original contract between the plaintiff and the United States the plaintiff had delivered part of 200,000 bushels of oats which he had agreed to deliver and had tendered the remainder, and that the quartermaster to whom they were properly tendered had refused to receive them. If the plaintiff suffered any loss by that refusal, he is entitled to recover for it in this action. ”

“ Upon no acknowledged principle can a special exception, out of a general authority, be extended by construction so as to annihilate or embarrass the exercise of the general authority. But, to obviate the force of this view of the subject, the learned counsel admit, that the legislature of a State has authority to provide by law what contracts shall not be obligatory, and to declare that no remedy shall exist for the enforcement of such as the legislative wisdom deems injurious. They say, the obligation of a contract is coeval with its existence ”

“ I admit further, that it is this law which creates the obligation of a contract made upon a desert spot, where no municipal law exists, and (which was another case put by the same counsel) which contract, by the tacit assent of all nations, their tribunals are authorized to enforce.
But can it be seriously insisted, that this, any more than the moral law upon which it is founded, was exclusively in the contemplation of those who framed this constitution? What is the language of this universal law? It is simply that all men are bound to perform their contracts. ”

“ And no good reason is perceived why the last should not be restricted to retrospective laws, relating to private rights growing out of the contracts of parties. The one provision is intended to protect the person of the citizen from punishment criminally for any act not unlawful when committed ”