Cooley v. Board of Wardens of Port of Philadelphia 12 Howard 299 (1851)

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The chaos in judicial interpretation that characterized the taney court ' s commerce clause cases was ended in Cooley, the most important decision on the subject between gibbons v. ogden (1824) and united states v. e. c. knight co. (1895). The Taney Court finally found a doctrinal formula that allowed a majority to coalesce around a single line of reasoning for the first time since the days of the marshall court. That formula was the doctrine of selective exclusiveness, announced for the majority by Justice benjamin r. curtis. The doctrine was a compromise, combining aspects of the doctrines of concurrent powers over commerce and exclusive powers, but three Justices of the eight who participated rejected the compromise. Justices john mclean and james m. wayne, whom Curtis privately called "high-toned Federalists," persisted in their nationalist view, expressed in dissent, that congressional powers over interstate and foreign commerce were always exclusive, while peter v. daniel, an intransigent states-rightist, concurred in the majority's result on the ground that congressional power over commerce was never exclusive.

At issue in Cooley was the constitutionality of a Pennsylvania statute requiring ships of a certain size entering or leaving the port of Philadelphia to employ local pilots in local waters. Cooley, claiming that the state act unconstitutionally regulated foreign commerce, refused to pay the pilotage fee. The fact that the first Congress had provided that the states could enact pilotage laws did not alter Cooley's claim. Curtis for the Court acknowledged that if the grant of commerce powers to Congress had divested the states of a power to legislate, the act of Congress could not confer that power on the states. The problem was whether the power of Congress in this case was exclusive.

Commerce, Curtis declared, embraces a vast field of many different subjects. Some subjects imperatively demand a single uniform rule for the whole nation, while others, like pilotage, demand diverse local rules to cope with varying local situations. The power of Congress was therefore selectively exclusive. If the subject required a single uniform rule, the states could not regulate that subject even in the absence of congressional legislation. In such a case congressional powers would be exclusive. Such was the nationalist half of the doctrine. The other half, by which the Court sustained the state act, maintained that the states did possess concurrent powers over commerce if the subject required diversity of regulation. Thus Congress's power was exclusive or concurrent depending on the nature of the subject to be regulated. "It is the opinion of a majority of the court," Curtis declared, "that the mere grant to Congress of the power to regulate commerce, did not deprive the States of power to regulate pilots, and that although Congress has legislated on this subject, its legislation manifests an intention … to leave its regulation to the several States."

The Court's doctrine of selective exclusiveness gave it a point of departure for analyzing commerce clause issues. The doctrine, however, had to be interpreted. It did not even suggest how the Court could determine which subjects required national legislation, thus excluding state action, and which required diverse local regulations. The doctrine could be manipulated by Justices who employed nationalist doctrine to invalidate state enactments.

Leonard W. Levy


Swisher, Carl Brent 1974 History of the Supreme Court. Vol. 5:404–407. New York: Macmillan.

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Cooley v. Board of Wardens of Port of Philadelphia 12 Howard 299 (1851)

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