The Commerce Clause Issue in Corfield

In my research into Bushrod Washington’s original notes on Corfield v. Coryell, I’ve come across something else of interest. One constitutional claim in the case was that New Jersey’s law barring out-of-state residents from harvesting oysters in state waters violated the Commerce Clause. The claim was that Congress’s commerce power was exclusive and that the state was, in fact, regulating commerce in navigable waters.

When the Justice was first considering this question, the Supreme Court had not yet decided Gibbons v. Ogden. Washington began his analysis with the tentative premise that the commerce power was exclusive. He then wondered why the New Jersey regulation should be considered commercial at all:

[D]oes the article of the Constitution above mentioned apply to the case[?] The law merely forbids the taking of oysters. Cannot a law be made to prevent citizens of other states from taking sand, stones, wood, or anything belonging to individuals, to the state, or to the citizens of N.J. in common? What has that to do with commerce, which consists in bartering, buying and selling. The prohibition is not of the use of the waters for navigation and trade, but of the taking of oysters within the waters. Could not a law forbid the citizens of other states from taking the fish or oysters from a several fishery? Or from a free fishery? If she could why not forbid the same in relation to a common fishery?

Notice that Washington’s definition of commerce here is relatively narrow. In part, that may have been driven by the assumption of congressional exclusivity, or the Justice’s view that states should have some latitude in regulating local interests. Corfield was held over pending the Supreme Court’s consideration of Gibbons, and the kind of statute at issue in Corfield may have been on the Justice’s mind when the Court considered Gibbons. Indeed, part of the Corfield notes he reflected on the issue  on state steamboat monopolies and their bearing on the Commerce Clause.

After Gibbons was decided, Washington wrote Corfield and blended comments from his original notes with the new reality that the commerce power was not deemed exclusive by the Supreme Court, in the sense that some local regulation was permissible. I will trace all of this in the Corfield paper that I am now writing.

 

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