On Tue, 5 Mar 1996, Don Baccus wrote:

> > In antebellum America, however, the justification for state
> >regulation was based on different theories: regulation was tied to the
> >public interest conceived as a type of property.
>
> >This theory -- known as
> >the "state ownership doctrine" -- was endorsed by the Supreme Court in
> >an 1896 decision, Geer v. Connecticut, 161 U.S. 519 (1896).
>
> I'm a little confused by this. Antebellum America was that before
> the Civil War - do you mean that this doctrine was in place before
> the conflict (which I would interpret to mean from soon after the
> ratification of the Constitution), but only reached the Court
> in 1896? Or did you mean that it grew after the war, and reached
> the Court in a relatively rapid two or three decades?


The doctrine evolved out of common law property notions associated with
the "ownership" of lands beneath tidal waters. It was initially applied
to the issues of potential federal control over wildlife (oysters) under
either the Commerce Clause or the Privileges and Immunities Clause of the
U.S. Constitution in an 1823 federal circuit court of appeals decision
Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823). Associate
Supreme Court Justice Bushrod Washington (George's nephew) sitting as
circuit judge held that the state owned the submerged lands and thus the
oysters so that they were not interstate commerce and not something that
the Constitution required the states to share with non-citizens.

The idea evolved from this beginning through a series of Supreme Court
cases -- Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842), Smith v.
Maryland, 59 U.S. (18 How.) 71 (1855), McCready v. Virginia, 94 U.S. 391
(1876), and Manchester v. Massachusetts, 139 U.S 240 (1891) -- before the
Court stated it in its *classical* form in Geer.

Legal doctrines seldom emerge full-blown. In the 70 odd years between
Corfield and Geer, the doctrine changed in a number of significant ways.

dale goble
moscow