Throughout his twenty-six years on the United States Supreme Court, Mr. Justice Black has shown himself to be an able advocate of Chief Justice Marshall's interpretation of the critical clause which empowers Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The commerce clause does not explain what power over commerce, if any, is left to the states. Since Chief Justice Marshall's first attempt to clarify this relationship in Gibbons v. Ogden, the Court has adopted a series of constitutional doctrines, none of which can be regarded as having finally resolved the issues. The Justices, however, have pointed out again and again the important direct effect judicial application of this clause has upon the nation's economic and social systems and the distribution of powers in our federal system. Mr. Justice Black has adopted a view of the commerce clause which not only gives broad scope to federal power but also gives the states "wider authority than they have ever had." In so doing, he has drawn on the major premises laid down by Marshall, while contributing his own insights into the governmental adjustments appropriate to the complexities of the modern economy. A comparison of the positions of Justices Marshall and Black is made in the following areas: (1) What is the power granted the federal government by the commerce clause? (2) What power over commerce is retained by the states? (3) To what branch of the federal government is the commerce power given?
Mr. Justice Black, Chief Justice Marshall, and the Commerce Clause,
43 Neb. L. Rev. 1
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