Ogden Livingston Mills

Ogden Livingston Mills 1884-1937, American political leader, b. Newport, R.I. He practiced law in New York City and became an active Republican party leader. He served (1914-17) in the New York state legislature and then (1921-27) in the U.S. Congress, where he was noted as a fiscal expert. He was appointed (1927) Under Secretary of the Treasury, succeeded Andrew Mellon as Secretary of the Treasury (Feb., 1932-Mar., 1933), and afterward severely criticized the New Deal. His works include Liberalism Fights On (1936) and The Seventeen Million (1937).

Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824), argued 4–9 Feb. 1824, decided 2 Mar. 1824 by vote of 6 to 0; Marshall for the Court, Johnson concurring. It was thirty‐five years after ratification of the Constitution before the Supreme Court decided a case related to the clause empowering Congress to regulate interstate and foreign commerce (Article I, sec. 8). In Gibbons v. Ogden (1824), Chief Justice John Marshall delivered an opinion that was a classic statement of nationalism. Over the years, it became a source of extensive authority for Congress to address new problems in the regulation of the national economy. Judges and lawyers would analyze it to explain the distribution of powers between nation and states in the American federal system (see Federalism).

The case arose during the early days of the steamboat. In 1807, Robert Fulton, the most successful of the many inventors seeking a practical steam‐propelled craft, ran his boat up the Hudson River at the speed prescribed by a New York law and thereby acquired a monopoly of steam navigation on the state's waters. Ambitious interlopers challenged this monopoly, which led to lively litigation. One line of cases involved Aaron Ogden, who held a state‐required Fulton‐ Livingston license, and Thomas Gibbons, who held a federal coasting license and ran competing boats between New Jersey and Manhattan. The New York courts repeatedly upheld the monopoly against such competition (Livingston v. Van Ingen, 1812, and Gibbons v. Ogden, 1820). By 1824 the dispute reached the U.S. Supreme Court on appeal.

Daniel Webster made the principal argument for Gibbons. He set out the options for interpreting the Constitution in matters concerning state and national powers over interstate commerce: (1) exclusive national power; (2) fully concurrent state and national powers (see Concurrent Power); (3) partially concurrent state power not reaching “higher branches” of that commerce; and (4) supremacy of a national statute over a contrary state statute. In arguing for the first of these, Webster construed commerce broadly and warned against a tangle of conflicting local policies. One of Ogden's counsel, Thomas Emmet, insisted that states had frequently legislated on many interstate matters and ought to have fully concurrent power over commerce between the states.

Marshall spoke for the entire Court, except William Johnson, who filed a concurring opinion. Marshall plainly preferred the exclusive option. He defined commerce expansively, far beyond mere exchange of goods, to include persons and new subjects such as the steamboat. Nevertheless, he held back from deciding the case on exclusivity grounds, probably because of the possible impact such a broad reading of federal power might have on slaveholding states, nervous as they were about federal authority (see Slavery). But Justice Johnson, a South Carolinian who was a fervent nationalist on this question, adopted that option. In the actual holding, Marshall construed Gibbons's federal license to nullify the New York grant of monopoly. He saw a conflict of congressional and state statutes, thus selecting the narrowest strategy and postponing a more comprehensive ruling.

Lawyers and judges explored this question in several cases over the next quarter‐century and finally arrived at a compromise formula that acknowledged a partially concurrent state power over interstate commerce. In Cooley v. Board of Wardens (1852), the Taney Court decided that some subjects of commerce required a uniform rule and national uniformity, while others permitted a degree of state action. However, Cooley's general formulation left many specifics unclear (see Selective Exclusiveness).

During its conservative periods, the Court expressed hostility to both national and state regulatory powers. For example, in the late nineteenth century, both state railroad regulation and national antitrust reform suffered from narrow and tortured readings of the Commerce Clause. This judicial negativism persisted until the 1930s, albeit with respectful citations to Gibbons. After the constitutional revolution that began in 1937, the Court read the steamboat case differently to permit almost unlimited federal power, whether for regulating the economy or, as in Marshall's time, for stimulating its growth. Entirely new uses for the commerce power, notably protection of civil rights, have emerged. At the same time, the Court has allowed a broad field for state legislation, no doubt much broader than Chief Justice Marshall would have favored.

Bibliography

Maurice G. Baxter , The Steamboat Monopoly: Gibbons v. Ogden, 1824 (1972).

Maurice G. Baxter

Livingston, Henry Brockholst (b. New York City, 25 Nov. 1757; d. Washington, D.C., 18 Mar. 1823; interred Trinity Church churchyard, New York; remains transferred to Green‐Wood Cemetery, Brooklyn, in 1844), associate justice, 1807–1823. Although born in New York City, this son of William Livingston and Susanna (French) Livingston grew up in New Jersey, where his father served as governor. Young Livingston attended the College of New Jersey (Princeton) with James Madison. A patriot, he was commissioned captain in the Continental Army and served on the staffs of Generals Schuyler, St. Clair, and Arnold. He went to Spain as private secretary to John Jay, his brother‐in‐law, with whom he was often at odds. In 1782 he was captured by the British, paroled, and began the study of law.

Livingston practiced law in New York and dropped the “Henry,” thereby avoiding confusion with several cousins. Active in politics, he served three terms in the state assembly. He delivered the first Independence Day address in the presence of George Washington in 1789 and published Democracy: An Epic Poem under the pseudonym of Aquiline Nimble‐Chops.

Livingston's legal activities were extensive. He assumed the leadership of the “Manor” branch of the family in its lawsuits with the “Clermont” side and aided Alexander Hamilton in the Tory confiscation case of Rutgers v. Waddington (1784). By 1791 he emerged as a notable anti‐Federalist, helping carry New York for Jefferson in 1800. His reward was appointment as a puisne judge on the New York Supreme Court in 1802.

In four years, Livingston wrote 149 opinions, attaining high judicial humor in the famous foxhunt case of Peirson v. Post (1805). Livingston wrote a powerful decision in Palmer v. Mulligan (1805), favoring the business use of water at the expense of agrarian interests. Although his commercial decisions supported emerging capitalism, Livingston held to the traditional view that the truth of an utterance and its good faith were irrelevant to a charge of seditious libel. In a rare constitutional case, Hitchcock v. Aicken (1803), he used the full faith and credit clause to sustain an out‐of‐state judgment, a position he reaffirmed in Mills v. Duryee (1813). Livingston also served on the Council of Revision, where he voted against one bill because it altered charters of incorporation without the consent of the parties.

Livingston was considered for the United States Supreme Court in 1804 but had to wait until 1807. Those who expected him to be a pillar of opposition to Chief Justice John Marshall were disappointed; Livingston reverted increasingly to the Federalism of his youth. Falling under the genial sway of Marshall, he produced only thirty‐eight majority opinions, eight dissents, and six concurrences in sixteen years. Although Livingston had written a sweeping circuit court decision upholding New York's insolvency law (Adams v. Storey, 1817), he reluctantly followed the Court in striking down the retrospective aspects in Sturges v. Crowninshield (1819). Justice Joseph Story's private correspondence alone indicated his conflict with Marshall. More independent on circuit, in United States v. Hoxie (1808), he drew strictly the definition of treason to exclude the mere conveying of a raft of logs to the enemy.

Livingston was the Supreme Court's unofficial expert on commercial law until the arrival of Story and had great experience in prize law. His opinions were held in high regard by Story and subsequent legal critics.

Two acts of dubious judicial decorum involved Livingston (see Judicial Ethics). He informed John Quincy Adams of the court's intended decision in Fletcher v. Peck (1810), and in the Dartmouth College case (1819) he reportedly was influenced by an extrajudicial communication from former colleague Chancellor Kent and accepted honorary degrees from Princeton and Harvard while the case was under advisement.

Although lost under the shadow of Marshall, Livingston was nevertheless a vigorous and forceful personality on and off the bar. He survived one assassination attempt in 1785 and killed a man in a duel in 1798. A persistent advocate of free public schools, he also served as treasurer and trustee of Columbia University. His death in 1823 marked the beginning of the breakup of Marshall's undisputed sway over the court.

A World War II liberty ship was named for Livingston. Two distant cousins became president: George H. W. Bush in 1989 and George W. Bush in 2001.

Bibliography

Gerald T. Dunne , Brockholst Livingston, in The Justices of the United States Supreme Court, 1789–1969, edited by Leon Friedman and Fred L. Israel, vol. 1 (1969), pp. 387–398.
Charles Warren , The Supreme Court in United States History, 2 vols. (1928).

Michael B. Dougan