CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #8

• GIBBONS V. OGDEN, p. 148 (1824)
• Nature of the dispute, what court rendered the judgment below and under what law
• Did the activity in dispute fall within the scope of the "commerce power" (Art. I §8 cl. 3)?
• "commerce"
• "among the several states"
• If so, which of three possible grounds of invalidity of state law invoked by original plaintiff is controlling for the Supreme Court?
• "constitutional preemption": commerce clause gives Congress exclusive power to regulate commerce, states can't act at all in the field? (Marshall, Johnson)
• "legislative preemption": Congress has exercised its power and has occupied the field, thereby excluding state regulation? (Johnson, in a succeeding passage not quoted in the casebook)
• direct conflict between Congressional regulation and state regulation, priority dictated by supremacy clause? (Marshall)
• Willson v. Black Bird Creek Marsh Co., p. 155 (1829)
• What power did the state exercise in authorizing the dam?
• Regulation of commerce?
• Regulation of health and safety?
• Did the construction of the dam conflict with federal law?
• The License Cases, p. 156 (1847)
• What power did the state exercise in requiring a license to sell liquor?
• Regulation of commerce? (Taney)
• Regulation of health and safety? (McLean)
• Did the licensing law conflict with federal law?
• COOLEY V. BOARD OF WARDENS OF THE PORT OF PHILADELPHIA, p. 158 (1851)
• What was the precise legal effect of the federal statute of 1789?
• What would the result have been, if there had been no federal statute?
• Is this a regulation of (interstate) commerce?
• Is it a subject matter which requires uniform national legislation?