Instruments of Commerce
Clause 3. The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
The applicability of Congress’s power to the agents and instruments of commerce is implied in Marshall’s opinion in Gibbons v. Ogden,713 where the waters of the State of New York in their quality as highways of interstate and foreign transportation were held to be governed by the overriding power of Congress. Likewise, the same opinion recognizes that in “the progress of things,” new and other instruments of commerce will make their appearance. When the Licensing Act of 1793 was passed, the only craft to which it could apply were sailing vessels, but it and the power by which it was enacted were, Marshall asserted, indifferent to the “principle” by which vessels were moved. Its provisions therefore reached steam vessels as well. A little over half a century later the principle embodied in this holding was given its classic expression in the opinion of Chief Justice Waite in the case of the Pensacola Telegraph Co. v. Western Union Telegraph Co.,714 a case closely paralleling Gibbons v. Ogden in other respects also. “The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.”715
The Radio Act of 1927716 whereby “all forms of interstate and foreign radio transmissions within the United States, its Territories and possessions” were brought under national control, affords another illustration. Because of the doctrine thus stated, the measure met no serious constitutional challenge either on the ﬂoors of Congress or in the Courts.717
713 22 U.S. (9 Wheat.) 1, 217, 221 (1824).
714 96 U.S. 1 (1878). See also Western Union Telegraph Co. v. Texas, 105 U.S. 460 (1882).
715 96 U.S. at 9. “Commerce embraces appliances necessarily employed in carrying on transportation by land and water.” Railroad Co. v. Fuller, 84 U.S. (17 Wall.) 560, 568 (1873).
716 Act of March 28, 1927, 45 Stat. 373, superseded by the Communications Act of 1934, 48 Stat. 1064, 47 U.S.C. §§ 151 et seq.
717 “No question is presented as to the power of the Congress, in its regulation of interstate commerce, to regulate radio communication.” Chief Justice Hughes speaking for the Court in Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933). See also Fisher’s Blend Station v. Tax Comm’n, 297 U.S. 650, 654–55 (1936).