What was William Johnson's concurring opinion in Gibbons v. Ogden?

Answer 1

In his concurring opinion, Justice Johnson wrote, in part:

"A right over the subject has never been pretended to in any instance except as incidental to the exercise of some other unquestionable power.

"The present is an instance of the assertion of that kind, as incidental to a municipal power; that of superintending the internal concerns of a State, and particularly of extending protection and patronage, in the shape of a monopoly, to genius and enterprise.

"The grant to Livingston and Fulton interferes with the freedom of intercourse, and on this principle, its constitutionality is contested.

"When speaking of the power of Congress over navigation, I do not regard it as a power incidental to that of regulating commerce; I consider it as the thing itself, inseparable from it as vital motion is from vital existence.

"Commerce, in its simplest signification, means an exchange of goods, but in the advancement of society, labour, transportation, intelligence, care, and various mediums of exchange become commodities, and enter into commerce, the subject, [p*230] the vehicle, the agent, and their various operations become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen are such vital agents of commercial prosperity that the nation which could not legislate over these subjects would not possess power to regulate commerce."

* There were seven justices on the bench in 1824, but Smith Thompson did not take part in the deliberation or vote.

Case Citation:

Gibbons v. Ogden, 22 US 1 (1824)

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