The Choice Between Madison and FDR

This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause

\u3cem\u3eWillson v. Black-Bird Creek Marsh Co.\u3c/em\u3e, 25 U.S. 245 (1829): An Early Test of the Dormant Commerce Clause

In 1822, Delaware authorized the Blackbird Creek Marsh Company to bank and drain the Blackbird Creek in New Castle County. Subsequently, Thompson Wilson and others destroyed the structure built by the marsh company. The marsh company subsequently sued Mr. Wilson for the damage to its property. The parties eventually appealed their dispute to the Supreme Court of the United States. The Court held that Delaware’s authorization to bank and dam the creek did not conflict with the federal government’s exclusive authority to regulate commerce between the several states. Ultimately, the Court decided Willson in a manner inconsistent with its earlier decision in Gibbons v. Ogden and subsequent decisions regarding navigation of U.S. waters. Additionally, Mr. Wilson likely chose not to bring a Fifth Amendment takings claim due to the lack of legal support for such a claim at the time