A few weeks ago, I wrote a column that included a brief discussion of the Supreme Court’s decision in Dred Scott v. Sandford, the 1857 case that both invalidated the Missouri Compromise and closed the door to Black citizenship in the United States — until it was effectively overturned by the outcome of the Civil War and officially overturned by the 14th Amendment to the Constitution.
To write about Dred Scott meant I had to read — that is, reread — Chief Justice Roger Taney’s infamous opinion for the court, in which he tried to root his anti-Black constitutional vision in the nation’s history. And while I did not write about it in the column, I also read the major dissent in the case, written by Justice Benjamin Curtis.
Curtis had a tumultuous time on the court. Nominated by President Millard Fillmore in 1851 to replace Levi Woodbury, the 41-year-old Curtis was the first and only Whig appointee to the court. A Boston-based litigator and one-time state legislator, Curtis came to Washington with a stamp of approval from none other than Daniel Webster.
Curtis made an immediate mark on the court with his majority opinion in Cooley v. Board of Wardens, in which he charted a middle course between two opposing views of the Commerce Clause. The case, which concerned a Pennsylvania law that levied a fine on vessels entering the Philadelphia harbor without a local pilot, asked whether the Commerce Clause gave Congress exclusive authority over interstate commerce — precluding any state action whatsoever — or whether states could pass laws affecting interstate commerce as long as they did not conflict with existing federal statutes.
Curtis’s solution was to split the difference. “Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress,” he wrote. But when the subject is “local and not national” regulation, it “should be left to the legislation of the states” until “Congress should find it necessary to exert its power.”
Although, as the legal scholar Alison LaCroix notes in “The Interbellum Constitution,” it would prove difficult to draw the line between the local and the national on questions of commerce, Curtis’s opinion would stand with John Marshall’s in Gibbons v. Ogden (1824) as one of the defining Commerce Clause decisions of the 19th century.
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