Willson v. Black Bird Creek Marsh Co. 2 Peters 245 (1829)

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Chief Justice john marshall's opinion for a unanimous Supreme Court cannot be reconciled with his opinions in gibbons v. ogden (1824) and brown v. maryland (1827), neither of which he mentioned in Willson. Delaware had authorized the company to dam a navigable tidewater creek, obstructing the navigation of Willson's sloop, licensed under the same Federal Coastal Licensing Act that had proved decisive in Gibbons. The Court sustained the constitutionality of the state statute as a measure calculated to improve marshland property and the health of its inhabitants. The Coastal Licensing Act notwithstanding, the Court found that Congress had chosen not to govern the many small navigable creeks of the eastern coast. In effect, the Court sustained the police power in a case involving local circumstances affecting the commerce clause "in its dormant state," that is, unexercised by Congress.

Marshall's Willson opinion is so laconic, almost unreasoned, and uncharacteristic of the great Chief Justice that it has never been satisfactorily explained. felix frank-furter, in his book The Commerce Clause, surmised that Marshall understood that a completely exclusive commerce power might overdiminish states ' rights and that Marshall realized the need for effective state regulation of local problems. Taking into consideration "the circumstances of the case," Marshall acknowledged the state interest in enhancing property values and improving the public health. Accordingly he opened the door to the police power because the state's objectives, unlike the situations in Gibbons and Brown, were not the regulation of commerce per se. Willson, however, left a confused legacy for the taney court, which divided in mayor of new york v. miln (1837) and produced doctrinal chaos in the license cases (1847) and the passenger cases (1849). Not until cooley v. board of wardens (1851) did the Taney Court find a formula that purported to reconcile Marshall's doctrines in Gibbons and Willson.

Leonard W. Levy

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Willson v. Black Bird Creek Marsh Co. 2 Peters 245 (1829)

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