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February 15, 2007
Ringside Seats to Gibbons v. Ogden
I had a pleasure of the third variety this morning.
For a paper I'm going to be writing this summer, I've recently been reading the correspondence of antebellum N.C. Supreme Court Justice Thomas Ruffin. I'm focusing on the 1820s, trying to learn about his involvement in a slave-trading partnership.
This morning I came across a letter to Ruffin dated February 12, 1824, from one Henry Seawell, a former Attorney General of the State of North Carolina. It seems that Seawell was in Washington, DC, on legal business for a few weeks, and had some time to kill. So he dropped by the Supreme Court. So impressed was he by what he saw that he colorfully described the proceedings in the letter to his friend Ruffin back in North Carolina.
It turns out that the argument that Seawell happened to drop in on was none other than Gibbons v. Ogden, one of the most important cases on the law of federal-state relations in the nation's history!
Seawell's description of the proceedings is priceless:
"The council in argument begin so low, as scarcely to be heard," Seawell writes, "and gradually swell until they fairly rave; then they gently subside into a soft whisper. Their gesticulation is menacing, both to the Court and the bystanders, and an equal portion of all they say, is distributed to every part of the hall."
In terms of style, times sure have changed. Oral arguments today are sedate, controlled, and low-toned affairs. No raving, no whispering, no playing to "every part of the hall," and definitely no menacing.
But on the substance, times haven't changed a bit. Here's Seawell complaining about burgeoning federal power:
"The Constitution of the United States appears to be acquiring in the political world what was ascribed to the philosopher’s stone in the physical regions. It is gathering by its own growth, the capacity of converting every thing, into exclusive jurisdiction of Congress."Mind you, this was 1824!
The trouble, wrote Seawell, was that "according to the construction now contended for, and what is more than probable will be supported by the
Supreme Court, the states can do nothing, which it is not in the power of Congress to regulate; and there is scarcely any change they can can act upon at all – the trade, or commerce, being helpful to the regulation of Congress, is supposed to draw after it almost all power of regulation."
Sort of puts the supposedly "new" federalism of the Rehnquist Court in context, doesn't it?
And the other thing that hasn't changed a bit, apparently, is the double entendre in the word "intercourse" as Chief Justice Marshall ended up using it (as an elaboration on the word "commerce") in the Gibbons v. Ogden opinion itself:
"According to a definition given to the word 'Commerce' by the Atto. Genl. that it means 'intercourse,' I shall soon expect to learn, that our fornication laws are unconstitutional: for the favorite doctrine now is, that all the powers which Congress possesses are exclusive – and consequently the sole power of acting upon that subject is transferred to them."
Get it? Congressional power over "intercourse" will lead to the invalidation of state laws against "fornication!"
I suppose it does not reflect well on my sense of humor that I made a joke not unlike this one in class two weeks ago while teaching Gibbons v. Ogden. Henry Seawell beat me to the punch(line) by 183 years.
UPDATE: Ingrate that I am, I neglected to include my source information for these images and quotes. Here it is: Quotes and images are from the Thomas Ruffin Papers (#641) in the Southern Historical Collection, The Wilson Library, UNC Chapel Hill. For more information on the Ruffin Papers, see the online finding aid for the collection.
Posted by Eric at February 15, 2007 11:40 PM
Comments
Quotes and images are from the Thomas Ruffin Papers (#641) in the Southern Historical Collection, The Wilson Library, UNC Chapel Hill. For more information on the Ruffin Papers, see the online finding aid for the collection at http://www.lib.unc.edu/mss/inv/htm/00641.html.
ELM: Oops! I meant to include the info and a link in the post. I'll add it now.
Posted by: Laura Clark Brown at February 16, 2007 9:50 AM
YES. I love archival research. While doing archival research on my small, all-women's college located in Raleigh, I discovered a letter from a student at the (then named) Peace Institute to her father... Complaining about how her roommate stole her snacks, used her hairbrush, and ruined her clothing by wearing them without asking.
Hilarious peek into the truth: the more things change, they more they stay the same.
Posted by: Sassy Belle at February 18, 2007 7:54 PM
In british Foreign Office correspondence from the 1830s, I found a letter from Lord Palmerston to one of his ambassadors demanding that the ambassador use better handwriting when writing to him.
Posted by: jb at February 19, 2007 2:43 AM