The Gibbons V. Ogden Fetish

Authors

Fred'k H. Cooke

Abstract

It was, we believe, Huxley who once said something to the effect that, as soon as one becomes an authority in science, he becomes a nuisance. In many a field of human activity, we find illustrations of the influence of a great name in retarding the progress of thought. Cuvier and Agassiz furnish notable instances in the realm of natural science. For centuries the great authority of Galen operated to paralyze progress in medicine. Still better known are instances of supposedly infallible individuals, or organizations, or writings, in retarding progress in theology. The same influence has notoriously operated in jurisprudence. Not to go outside of England, the names of Blackstone, Mansfield and Eldon immediately suggest themselves. But we are here specially concerned with the influence of three opinions of Chief Justice Marshall delivered in cases involving the effect of the commerce clause: Gibbons v. Ogden, decided in 1824; Brown v. Maryland, in 1827; Willson v.Black Bird Creek Marsh Co., in 1829. Now Marshall's service as Chief Justice continued from 1801 until 1835, that is, from the age of forty-five until seventy-nine. Conceding the great merit of his constitutional opinions delivered in the earlier years of his career, is it an the reasonable conjecture that these three opinions belong to the period of his intellectual decadence? But we forbear to urge this consideration.

Recommended Citation

Fred'k H. Cooke, The Gibbons V. Ogden Fetish, 9 Mich. L. Rev. 324 (1911).
Available at: https://repository.law.umich.edu/mlr/vol9/iss4/3