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September Notes Constitutional Law


September 1, 1999


Commerce clause


United States v. Lopez


Majority - Renquist, Kennedy, O'Conner, Thomas, Scalia

Dissent - 


Renquist wrote majority opinion.

Justice Kennedy filed concurring opinion in which Justice O'Connor joined.

Justice Thomas filed concurring opinion.

Justices Stevens and Souter filed dissenting opinions.

Justice Breyer filed dissenting opinion, in which Justices Stevens, Souter and Ginsburg joined.


Theme I

-         how do the different opinions characterize the history of the commerce clause?

-         What legal test would they enact?


Emphasis on limits on Congress in this Rehnquist opinion.


Three broad catagories of activity that Congress may regulate under the commerce power:

1.      channels of interstate commerce

2.      instrumentalities of interstate commerce

3.      things having a substantial relation to interstate commerce (direct and indirect)



September 8, 1999


Gibbons v. Ogden

“steamboat case”

-         arguments began on Feb 4, 1824

-         many issues were at forefront in this case; including ability of states to have slavery, build canals and waterways,

-         “what can’t be cured must be endured”


Marshall wanted to add a definition: commerce –


Five categories to decide whether it is commerce:

1)      interstate commercial intercourse

2)      classification of areas

3)      substantial economic effect

4)      cumulative effect

5)      protetive principle


Shreveport – Congress’s authority was upheld

Champion –





September 13, 1999


For next time: focus on New York (in book) and Prince (supplement)


Catagories of commerce clause cases:

1. commercial intercourse (Gibbons)

2. clssification of areas test (pre-1937 era) (manufacture, mining, production, etc.)

3. substantial effect (Shreveport case)

4. cummulative effect

5. protective principle (Lottery Case, Darby)


Knight: suggested that the local activity was not reachable unless it had a direct rather than an indirect effect on interstate commerce: an attempt to monopolize sugar refinin, through of significant interstate cexonomic consequences, was not controllable through federal legislation because the relationship between manufacturing and commerce was indirect.


Shreveport: by contrast, local railraod rates were reachable because of their practical aconomic impact on interstate transportation.




These two cases show the difference between functionalists and formalists. 


United States v. Darby

- involved the Fair Labor Standards Act of 1938



Schechter, Carter - dealt with FDR's new deal plans.


Court Packing plan - Roosevelt tried to pass a plan allowing for more Supreme COurt Justisces.  He lost, this plan, but still got 5 justices appointed.


Wickard v. Filburn - got rid of deciding questions of federal power by using the classification test: "the mechanical application of legal formulas [is] no longer feasible."


Think about: one of the concerns after Lopez is what does congress have to do to have its legislation ruled unconstitutional?  COngress is now more careful to put a jurisdictional element into its statutes.  If there is a jurisdictional element, then the COurt is less likely to overturn it.  The COurt held in Lopez: "the statuts has no express jurisdictional element which might limit its reach"  If it had maybe it would have been COnstitutional.


Heart of Atlanta Motel - civil rights case

Ollies Barbeque Restaurant - civil rights case


Look at first part of Lopez decision for a good synopsis of the history of the commerce clause cases.



September 15, 1999


Next week's assignment:


89-91 of supplement - Burney.  Will begin with Butler and Dole, then do note on 11 Amendment, then move to Enforcement of Civil Rights


External limits on the commerce power:


Two divisions:

1.      commerce power

2.    tenth amendment


Importance of tenth AMendment is now what is more pertinent it seems.


Need to know why 10th Amendment is more pertinent in some cases than in others.

Know why there is a commerce clause line and why there is a 1oth Amendment line of cases.


National League and Garcia cases


Justice Renquist beleives the following are important:

1. strict construction of Constitution and statutes

2. judicial restraint

3. federalism


Factors in determining whether the USSC should follow Stare decisis:

- whether a rule has become intolerable simply in applying practicable workability

- looks to see whether related principles of law have developed so far, that leaving the old remnant of a rule would not be good

- whether the facts have changed or have come to be seen differently so that the old rule does not have application

- is a rule subject to reliance that would lend a hardship to overruling it


There is a big battle over this in Casey.


National League and Garcia show the battle of Federalism over the Years.


New York v. United States:

written by O'Connor

joined by Rehnquist, Kennedy, Scalia, Souter, Thomas



Stevens concurred in part, dissented in part

White, Blackmun




September 20, 1999


Review of Printz v. United States


Constitutionality exercise – looked a statute to determine constitutionality

-         the statute dealt with a congressional requirement of Congress that all states report missing children to a national agency



September 22, 1999


This is a good time to get outlines together; do sample test questions that she handed out


Is the federal government coercing the states?

Or is the federal government trying to __ the states?


Dole case:

Federal government is not supposed to be telling states to do something that is unconstitutional


Should individuals be able to sue the states?  11th amendment materials

-         courts have split on this

-         one court (Fitzpatrick v. Bitzer) said Congress does has the power to abrogate the state’s 11th Amendment immunity and allow states to be sued directly (this might come from Section 5, 14th Amendment); the 14th Amendment comes after the 11th Amendment so therefore it can trump the 11th.  It changed federal and state interaction

-         in Seminole Tribe the majority overruled Union Gas and rejected the claim that the commerce power could abrogate a state’s 11th Amendment immunity


Order of Katzenbach v. Morgan caselaw analysis:

  1. Lassiter – court said that the NJ statutes requiring people to be able to read and write English was not an equal protection violation.  Not in violation of the 14th Amendment.
  2. Congress – Voting Acts Rights of 1965, section 4(e) – says that if you completed the 6th grade in a school in which the language of instruction was other than English you can NOT be denied the right to vote.
  3. Court – Morgan

-         remedial legislation (find facts)

-         substantive legislation



September 27, 1999


Review of Morgan

-         the court decides what the law is (marbury) but Congress gets to use its power to enforce the provisions of the 14th amendment.  But does it say that congress can’t act until the court has not heard a case on the 14th amendment?  NO – this would really limit Congress’ power; it does not make sense to have congress only be able to act after there is a Court opinion

-         literacy tests do not violate equal protection says the court; congress says they do; this is the substantive part of Morgan;

-         dissent says the court does not get to go against Congress in this way

-         one way rachet of Morgan – only Court can interpret (??) the 14th amendment – not Congress



  1. sherbert


  1. Smith

b. precedent

  1. Congress passes Religious Freedom Restoration Act
    1. which is supposed to restore the earlier test



Make sure you know Section 5

-         any question you get where Congress acts, do enumerated powers analysis and go through those cases

-         know section 5 on its own, not just commerce clause


open question in many ways how broad or how limited executive powers are


What are the sources of President’s authority?

1.      Act of Congress

a.       express

b.      implied

2.      the Constitution

a.       express

b.      implied

i.   take care

ii. executive power

iii.                  commander in chief



September 29, 1999


Executive power continued


Three levels of power according to Jackson concurrence in Youngstown

  1. highest power - executive power (Article 2) plus act of Congress
  2. second highest - Article II, executive power in the absence of Congressional Act; this is the famous “zone of twilight”
  3. lowest - president acts without Article II power and without support of Congress


two part action of executive powers:

  1. power to deal with other governments
  2. power to control own citizens in USA


Part one of agreement: transfer assets to Iran

Part two: suspension of claims in American courts


Where does president get executive privilege?

-         nothing specific in the constitution about it; but it is arguable that it is implied in the constitution