Outline Contracts 2 Cooley Scott

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Outline Contracts 2 Cooley Scott Powered By Docstoc
					Analysis
   A. Action by Federal Gov’t
         a. Statutes (interpret so that constitutional problems may be avoided)
                  i. Does Cong. have the delegated Power?
                 ii. Does the statute violate a limitation in the Constitution that protects individual rights?
                iii. Does federal statute preempt state law?
         b. Executive Orders
                  i. Does executive (usually Pres) have the delegated or inherent power?
                 ii. Does the order violate a constitutional limitation?
         c. Administrative Actions
                  i. Has Cong. granted the general power to the administrative agency?
                 ii. Does the action violate a constitutional limitation?
         d. Legislative and Administrative Investigations
                  i. What authority has been granted by Cong to the investigative body?
                 ii. Does the specific action violate any constitutional limitations?
   B. Action by State (or Local) Government
         a. Statutes
                  i. Does it violate a constitutional limitation of individual rights?
                 ii. Is it contrary to an implied constitutional limitation on state power (e.g. Commerce power)
                iii. Has it been preempted by federal treaty or statute?

JUDICIAL POWER

Background
Article III, Section 1 provides that judicial power shall be vested in a Supreme Court and inferior courts to be
created by Congress. The scope of the judicial power includes original jurisdiction over a small number of cases
and controversies, including cases affecting Ambassadors and those in which a state is a party. Congress can’t
restrict or enlarge the Supreme Court’s original jurisdiction. Marbury v. Madison (holding that the Judiciary Act
was unconstitutional because it enlarged the SC’s original jurisdiction to include suits involving writs of
mandamus for government officials). Article III, Sec 2 limits the appellate jurisdiction of the federal courts.
Moreover, under the “exceptions and regulations” language of Article III, Congress may limit the Supreme
Court’s appellate jurisdiction. Ex Parte McCardle (holding that Supreme Court did not have jurisdiction to hear
McCardle’s appeal because Congress repealed the portion of the Reconstruction Act that gave the Supreme Court
jurisdiction to hear it)

11th Amendment
The 11th Amendment says that judicial power should not be construed to allow a citizen of one state to sue
another state. However, it was interpreted to also prevent federal court suits by citizens of the state being sued.
Hans v. Louisiana. The 11th Amendment does not prevent suits by the federal government against the states.
Moreover, the 11th Amendment does not prevent suits against subdivisions of a state, such as cities or
municipalities. Moreover, if an official is allegedly enforcing an unconstitutional enactment, they may be sued
because they cannot be acting in an official capacity if they are upholding an unconstitutional statute. Ex parte
Young (holding that federal courts can issue injunctions against state officials in private suits to prevent
enforcement of unconstitutional state laws). Moreover, under its enforcement power in section 5 of the 14th
Amendment, Congress has the power to make exceptions to the 11th Amendment. While it cannot abrogate the
11th Amendment based on Article I of the Constitution (which came before it), Seminole Tribe of Florida v.
Florida, overruling Pennsylvania v. Union Gas, Congress may abrogate the 11th Amendment for causes of action
passed pursuant to section 5 of the 14th Amendment.

Judicial Review
While the constitutional text does not expressly provide for judicial review, the Supreme Court has held that it has
appellate jurisdiction regarding the constitutionality of acts of Congress, Marbury v. Madison (holding Judiciary
Act unconstitutional), state statutes, Fletcher v. Peck (holding state’s ex post facto law regarding real property
unconstitutional under the contract clause), and the judgments of the state courts, Martin v. Hunter’s Lessee
(holding that review of VA’s supreme court decision was necessary to ensure uniformity and prevent state
prejudices from inhibiting justice). Some other alternatives to judicial review include 1) telling Congress of the
problem and waiting for them to fix the issue through legislation, 2) allowing the president to refuse to enforce
bills that he considers unconstitutional, or 3) States could propose an amendment to fix whatever constitutional
ambiguity exists. However, there is evidence going all the way back to the Federalist Papers suggesting that
judicial review was implied as part of the judicial powers granted in the Constitution.


LEGISLATIVE POWER
Background (N&P, Implied, Inherent pwrs)
Article I basically gives Congress the power to legislate. This also includes the power to investigate matters upon
which legislation may be enacted and to do all other things “necessary and proper” to the enactment of the
legislation. Under the doctrine of enumerated power outline in the 10th Amendment, all powers not delegated to
the US by the Constitution are reserved to the states or to the people. Moreover, under the doctrine of implied
powers, the Supreme Court in McCulloch v. Maryland held that in addition to enumerated powers, there were also
broad federal powers implied under the Necessary & Proper Clause (Art. I, Section 8, cl 18). Under the
interpretation in McCulloch v. Maryland, Congress is not limited to only those means that are absolutely
necessary. Rather, it may use any appropriate means that would be useful or convenient to achieve the end
specified in an enumerated power as long as these means are not prohibited by the Constitution. Id. (holding that
while the power to incorporate a national bank was not an enumerated power, Congress may do so as a means of
laying and collecting taxes, borrowing money, regulating commerce among the states, declaring and conducting
war, and raising and supporting armies and navies. Moreover, another exception to the doctrine of enumerated
powers is that there are certain inherent powers that are considered to exist by nature of being a sovereign that are
not expressly stated in the Constitution. Chae Chan Ping (holding that the federal government’s inherent powers
include the power to exclude aliens).

Taxing and Spending Powers
Article I, Section 8 provides that Congress can lay and collect taxes in order to pay the debts and provide for the
common defense and general welfare. The powers to tax and the power to spend have been considered
independent powers such that it may tax or spend on activities that it couldn’t regulate directly under any of its
regulatory powers. It is important to note that the “general welfare” provision actually limits the federal taxing
power and does not grant Congress the power to legislate for the common welfare. If Congress has the power to
regulate the subject or activity being taxed, the tax can be upheld as a necessary and proper exercise of its
regulatory powers. The same is true for the spending power. If Congress does not have the power to regulate, the
tax must be justified under the taxing power. Here, the tax will be upheld if the dominant intent of the tax is
revenue raising rather than regulatory. The SC has used a very broad interpretation of this intent, in some cases
upholding the tax merely if it does in fact raise revenue. Similarly, Congress rarely lacks the power to regulate
activities through its spending power. South Dakota v. Dole (holding that Congress may condition federal
highway funds on recipient state’s adopting a minimum drinking age).

EXECUTIVE POWER
Appointment Power
Article II, Section 2 says that the President can appoint officers of the United States, with the approval of the
Senate. However, it allows Congress to vest the appointment of inferior officers with the President, Courts of
Law or with the Heads of Departments. In Morrison v. Olson, independent prosecutors who are appointed with
limited tenure and authority and are subject to removal by executive officials can be held “inferior” officers can
therefore be appointed by the courts. However, Congress may not vest the courts with appointment power if it
would be “incongruous” with the functions normally performed by the courts. For example, if the courts were
given too much discretion over the appointees’ jurisdiction. In Edmund, the Supreme Court found that civilian
members of the Coast Guard’s Court of Appeals were inferior officers because they were directed by a principle
officer. They were supervised and were therefore inferior to their boss.

Veto Power
The President’s veto power under Article I, Section 7 applies to all legislative action unless explicitly excepted by
the Constitution. Therefore, acts of Congress that authorize one or both of the Houses to change decisions or
rules delegated by Congress to executive departments of administrative agencies are invalid. These “legislative
vetos” are invalid because they are legislative actions that must therefore be presented to the President and subject
to his veto. INS v. Chadha. However, the president’s veto power only allows the President to approve or reject
an entire bill. He cannot pass a bill and then cancel portions of it using a line item veto. This is because the line
item veto, in its original proposed form, required the President to repeal laws that had been passed by Congress
and of which he approved, and this was unconstitutional. Clinton v. City of NY.

Military Powers
While the president cannot declare war, Article II, Section 2 makes him the Commander-in-Chief of the military.
This allows the president extensive legislative power in “theatres of war.” For example, in the Prize Cases, the
Supreme Court upheld the president’s seizure of vessels and cargos belonging to foreign neutrals prior to an
official declaration of war from Congress. Therefore, the president may deploy military forces against an enemy
without waiting for congressional declaration of war.

Emergency Power
Moreover, the president probably has some inherent power to act in cases of great national emergency. In
Youngstown Sheet & Tube, Truman’s executive order seizing steel mills to keep them operating during the
Korean War was held to be legislative and therefore beyond his power. However, whether he actually has some
inherent emergency power was not the issue but seemed to be assumed by some of the concurring justices.

Executive Privilege
Although not expressly mentioned in the Constitution, an executive privilege exists to protect the president’s
communications made in the exercise of his executive power. United States v. Nixon (holding that this power
derives from the doctrine of the separation of powers). In particular, where the communications relate to
military, diplomatic or national security secrets, the privilege is given the utmost deference by the courts.
However, other presidential communications, particularly where there is demonstrated need in a criminal trial, are
only presumptively privileged. Furthermore, under Clinton v. Jones, the President does not have any immunity
from private suits for damages in federal court based on unofficial acts. Furthermore, the separation of powers
doctrine does not require federal courts to stay all private actions against the President until he leaves office.
Clinton v. Jones.

Treaties
The President is empowered to make treaties with foreign nations with approval of a supermajority of the Senate.
When there is a conflict between a treaty and an act of Congress, they are of equal weight. Therefore, the last
expression of the sovereign is controlling. Chae Chan Ping v. United States. Moreover, in Missouri v. Holland,
treaties only need to be made under the authority of the United States. The control of wildlife that moves between
our country and another is a proper subject for negotiation in a treaty.

OVERVIEW OF THE FEDERAL SYSTEM
Today, federal powers are given an expansive interpretation, even though the 10th Amendment reserves all
powers not delegated by the Constitution to the States. The primary analysis involving state legislation is to
determine if this is an area that is exclusively federal or whether the states have concurrent power to regulate.
Even in situations of concurrent power, the Supremacy Clause says a state cannot enact legislation that interferes
with federal legislation.

Intergovernmental Privileges & Immunities
Under the 14th Amendment P&I clause, states are prohibited from making or enforcing laws that abridge the
privileges or immunities of citizens of the United States. These P&Is are rights that arise out of the relationship
between the individual and the national government, related to their national citizenship. The Interstate P&I
clause of Article IV, Section 2 prohibits states from discriminating against noncitizens or nonresidents with
respect to essential activities or basic rights unless the discrimination is closely related to a substantial state
purpose.

NATURE OF FEDERAL & STATE POWERS
General
   1. exclusively to federal gov’t
   2. exclusively reserved to states
   3. concurrent
A big problem exists trying to determine which federal powers are exclusive versus which are concurrent.

Exclusive vs. Concurrent Powers
The 10th Amendment reserves to the states all powers not delegated by the Constitution to the federal government.
A federal power may be considered exclusive 1) if there is a constitutional limitation on state power, 2) if the
nature of the power itself is exclusive, or 3) if the text of the Constitution grants exclusive power. Article I,
Section 10 expressly prohibits a number of state actions including the ability to enter into treaties and coin money.
The nature of certain powers imply they are exclusive including the power to borrow money on the credit of the
US, naturalization, the ability to declare war, etc. And finally, some powers are deemed “exclusive” in the text of
the constitution such as the power to exercise exclusive legislation over the District of Columbia.

Supremacy Clause
Article VI, Section 2 states that the Constitution and the Laws of the US are the supreme law of the land. The
effect of this clause is that whenever Congress has exercised its powers, any inconsistent state laws are prohibited.
A state law will be held void under the Supremacy Clause if it would impede or burden the accomplishment of
the purposes of the federal law. McCulloch v. Maryland (holding that a state law seeking to impose a tax upon
the Bank of the US, created by Congress, was void as a burden on federal power to regulate currency under
Article I, Section 8). Therefore, the Supremacy Clause impliedly forbids 1) state taxes that discriminate against
the federal government and 2) nondiscriminatory state taxes that substantially burden the federal government.

Absence of Federal and State Power
The provisions of Article I, Section 2, Clause 2 and Article I, Section 3, Clause 3 specifying the age, citizenship
and residence requirements for members of Congress are exclusive. Neither Congress nor the states may alter or
add to these qualifications because this would be contrary to the Framer’s intent of uniform national legislature.
US Term Limits v. Thornton (Arkansas Constitutional amendment prohibiting a candidate for Congress if they
have already served a certain number of terms was held unconstitutional as a violation of the Qualifications
Clauses).

National Citizenship
The 14th Amendment states that no state shall make any laws that abridge the privileges and immunities of
citizens of the United States. These privileges and immunities have been limited to only those rights that arise out
of the relationship of the individual and the national government. In the Slaughterhouse Cases, the SC held that
the fundamental rights protected against federal action by the first eight amendments to the Constitution were
NOT P&Is of national citizenship and therefore are not protected from state action under the P&I clause of the
14th Amendment. This essentially made the 14th Amendment P&I clause worthless in protecting individuals
rights from state abridgement. Rather, the SC began relying on the 14th Amendment Due Process and Equal
Protection clauses to provide basic protection of individual rights. The enabling clause of the 14th Amendment is
an important source of federal power .

State Citizenship
Article IV, Section 2 prohibits states from discriminating against noncitizens with respect to essential activities
and basic rights, unless the discrimination is substantially related to an important state purpose. New Hampshire v.
Piper (striking down the residency requirement to practice law in NY that was keeping a lady who had passed the
bar but lived 400 yards from the border, from practicing law). To decide whether the discrimination is related to
a state purpose, the SC will consider whether the state could have avoided some of the discrimination by using
less restrictive means. New Hampshire v. Piper. In United Building & Construction v. Camden, the SC held that
state action that discriminates against noncitizens of a particular municipality within the state is also subject to the
Comity clause. Here, the SC held that a city ordinance requiring 40% of the employees of contractors working on
city construction projects be city residents probably violated the P&I clause of Article IV. This requirement gave
a preference in private employment to city residents. Some discrimination has been upheld under this clause for
recreational activities. NOTE: even though the Comity Clause and the Commerce Clause apply different
standards and may produce different results, many issues can be decided under both theories.

Federal Regulation of State Governments
The 10th Amendment preserves the sovereign authority for the states and limits the federal government’s
regulatory power to interfere with states local functions. However, the SC has held that these state interests are
protected based on the inherent restraints in state participation built into the structure of the federal system,
including state representation in Congress. Therefore, the SC will not typically find that an otherwise permissible
exercise of congressional power violates the 10th Amendment because it regulates states as well as private
citizens. Garcia v. San Antonion Metropolitan Transit Authority. A general regulation that happens to affect the
states as well as others who engage in a certain activity does not violate the 10th Amendment. In National League
of Cities v. Usery, the SC held that Congress may not impose minimum and maximum wages on states in their
role as employers saying that the Fair Labor Standards Act was unconstitutional. The SC held that even though
this was within Congress’s Commerce Power, there are limits that to this power when it goes to far in overriding
state sovereignty. This was overruled in Garcia, when the San Antonio Metro told its employees that after
National League of Cities, the FLSA no longer applied to them. The SC rejected this idea. The Hodel test
checking if the federal regulation directly impaired a states ability to operate in its traditional government
functions was overturned. The SC held that this test was not good and that the protection for abuse of the
Commerce power is managed by the legislative process. The states don’t need protection of their sovereign rights
from the Commerce power because this is politically protected in Congress.

Regulating the States Alone
Nevertheless, despite Garcia the 10th Amendment does place some limits on Congress’s ability to regulate the
states alone. While Congress may hold out incentives to influence a state’s policy choices using its taxing and
spending powers, South Dakota v. Dole (holding that Cong. may condition a grant of highway funds on adopting
a minimum drinking age), it may not compel states to enact or enforce a federal regulatory program. New York v.
United States (holding that the Congressional Act requiring states to take title to their radioactive waste compels
states to regulate and therefore unconstitutionally commandeers the states’ legislative process. Moreover, in
Printz v. United States, the SC held that commandeering state executive officials to implement federal programs
is unconstitutional. The federal government should incur the full cost of implementing their programs and going
around the executive branch was a violation of separation of powers.

REGULATION OF COMMERCE
Quick Thoughts
State regulation – is it preempted? If Cong. hasn’t spoken, does state law discriminate against out-of-staters or
interstate commerce in general? If so, does it have a substantial non-economic justification and is it the most
reasonable means of achieving this state interest? Is the state acting as a market participant? If the law does not
discriminate against out-of-staters, how does the burden on interstate commerce compare to the strength of the
local interests?

General
Only the federal government can regulate foreign commerce. Moreover, if the federal government regulates
interstate commerce, it is most likely valid. The power under the Commerce Clause gives Congress the power to
regulate commerce among the state and this has been broadly held to extend regulation to the 1) channels and 2)
instrumentalities of interstate commerce, as well as 3) economic activities affecting interstate commerce. If the
question involves state regulation of interstate commerce, you must first see if Congress has acted. Congress may
authorize state regulations that otherwise would violate the Commerce Clause or may prohibit state regulation
that would otherwise be valid. You must look to see if Congress is found to have preempted the field. Look to
Congress’s intent. If Congress has not acted, and there is no federal legislation in the area, states may regulate
local transactions even if they affect interstate commerce. However, laws that discriminate against interstate
commerce are invalid unless they are 1) necessary to protect legitimate, non-economic interests (e.g. health &
saftety) and 2) there are no reasonable alternative ways to protect against those interests. Alternatively, the law
may be valid if the state is a market participant. If the state regulation does not discriminate against interstate
commerce, but does burden it, the SC will balance the burden against the strength of the state’s interest.

Scope of Federal Power
Article I, Section 8, Clause 3 grants Congress the power to regulate commerce among the several states. The SC
has held that the term “commerce” is not limited to the traffic and purchase of commodities, but also includes any
“commercial intercourse” and includes things like regulating navigation and waterways. Gibbons v. Ogden. In
Gibbons v. Ogden, NY granted a state monopoly to a steamboat company for operating between NY and NJ.
Gibbons had been operating a competing ferry under a federal license. Ogden went the court to get an injunction
against Gibbons and the Supreme Court said that the NY law was preempted by federal law. Gibbons v. Ogden.


Substantial Economic Effect
Moreover, the portion of the Commerce Clause power that allows Congress to regulate activities that substantially
affect interstate commerce is called the affectation doctrine. This doctrine allows Congress to regulate the
working conditions of the manufacturing of goods that compete with goods produced by other states. United
States v. Darby. This wasn’t always the case. For example, in Hamer v. Dagenhart, the SC held that Congress
could not enforce child labor laws to prevent the interstate transport of goods made in violation of this act. The
act was unconstitutional because manufacturing was a local activity that could not be regulated by Congress
under the Commerce Clause. However, United States v. Darby overruled Hamer saying that working conditions
could be regulated by Congress if the goods compete with goods produced by other states because the
substandard working conditions could destroy competition and thus affect interstate commerce. Moreover, a
motel that serves interstate travelers may be barred from engaging in racial discrimination because such
discrimination may deter persons from traveling and thus have an effect on other states. Heart of Atlanta Motel v.
United States. Moreover, the fact that any single business or individual regulated by Congress has only a small
impact on interstate commerce is immaterial. The crucial question is whether there is an aggregate effect on other
states. Wickard v. Filburn. In Filburn, a farmer was penalized for growing more wheat than was allowed under
an Act of Congress. He claimed that the crop quota under the Act did not apply to him because he was growing
the wheat for personal use, from supplies provided entirely instate. However, the SC found that the purpose of
the act was to restrict the supply of wheat in order to maintain wheat prices and that if you aggregated Filburn’s
use with many other farmers in similar situations, the aggregate effect could impact interstate wheat prices.
Therefore, the Act was constitutional and upheld.

Recent Limitations
Between 1937 and 1995, SC generally upheld Congress’s power to regulate almost every aspect of business under
the Commerce Clause. Congressional findings were given great deference. More recently, the SC has explained
the commerce power as allowing Congress to adopt legislation that 1) regulates the channels of interstate
commerce, 2) regulates the instrumentalities of interstate commerce, and persons or things in interstate
commerce, and 3) regulates activities that have a substantial effect on interstate commerce. United States v.
Lopez (holding that Congress may not prohibit possession of firearms in school zones under the Commerce
Clause because this was not a channel, instrumentality or activity substantially affecting interstate commerce);
United States v. Morrison (holding that federal law against gender-based crimes enacted under the Commerce
Clause was unconstitutional because it did not involve an economic activity). The modern view is that Congress
has plenary power over regulating the channels and instrumentalities of commerce, including the authority to
exclude from shipment or travel certain goods, people or activities that Congress finds harmful to the public
health, safety or welfare. Therefore, Congress may exclude commercial items such as lottery tickets, Champion
v. Ames, or goods produced under adverse work conditions, United States v. Darby.

State Regulation of Interstate Commerce
If Congress has regulated interstate commerce with a valid federal law, it is supreme over conflicting state laws
by nature of the Supremacy Clause. Moreover, even if Congress has not exercised its commerce power, state
laws may be invalid if they discriminate against interstate commerce or if they unduly burden interstate
commerce. These concepts are referred to as the dormant commerce clauses (DCC). Therefore, under the DCC
states may not favor local economic interests or unduly burden interstate commerce, even where Congress has not
enacted legislation.

Discriminatory Regulation
State regulations that discriminate against interstate commerce are almost always invalid. The reason is that the
Framers intended to combat economic protectionism amont the states and prevent retaliatory economic warfare
among the states. However, even a discriminatory state law may be valid if it 1) concerns the health or safety of
the state and there are no reasonable alternatives or 2) the state is acting as a market participant. Regarding
discrimination, in City of Philadelphia v. NJ, the SC held that NJ could not prohibit the importation of solid waste
that originated outside the state. The purpose of conserving landfill space and reducing pollution was not a
sufficient health and safety justification for discriminating against interstate commerce. Moreover, in Pike v.
Bruce Church, the SC held that a state statute requiring cantaloupes to be packaged in the state prior to being
shipped discriminated against interstate commerce. And finally, a city ordinance making it unlawful to sell milk
in Madison unless it was pasteurized within five miles of the city was held invalid because it discriminated in
favor of local pasteurizing businesses. Dean Milk v. Madison. In C&A Carbone v. Clarkstown, a statute requiring
all solid waste generated in the city to be processed at a single facility was “per se” invalid because it deprives
out-of-state businesses from the market for the trash and excessively burdens interstate commerce. Regarding the
market participant exception, in Hughes v. Alexandria Scrap, more onerous documentation requirements for out-
of-state scrap processors did not violate the Commerce Clause because MD was not seeking to restrict the flow of
automobile scrap. Rather, it had entered the market to bid up the price of the hulks in order to rid the state of
inoperable automobiles and was therefore acting as a market participant.

Nondiscriminatory Regulation
State regulations that don’t discriminate against interstate commerce are given more deference by the Court
because the burden of the state regulation must be compared with the local interests. Moreover, political
restraints in the state legislature protect against abuse of interstate commerce. The old approach, under Cooley v.
Board of Wardens, would uphold a state regulation if it had some rational basis. In Cooley, the requirement that
ships receive a local pilot while entering or leaving the Port of Philadelphia was upheld because piloting a ship in
its harbor was a local concern. However, under the modern approach having a rational basis for the
nondiscriminatory state regulation is not enough. Rather, under the balancing test you must show that the
strength of the state interest outweighs the burden imposed by the regulation on interstate commerce.

Comparison with Article IV P&I clause
The dormant commerce clause says that where there is no federal legislation and state actions discriminate against
out-of-state entities, the action is invalid unless there is an important noneconomic state interest and no reasonable
alternatives to the state action. In the Comity clause, the state action that denies the out-of-state person important
economic interests or civil liberties is invalid unless there is substantial justification and there are no less
restrictive means. If the law does not discriminate, the Comity Clause does not apply. Under the Commerce
Clause, however, the state law may still be invalid if the burden on interstate commerce outweighs the state’s
interest in the action. Using the Comity Clause would probably have been a better approach because the nature of
regulating commerce is that it is difficult to do with legal doctrine.

DUE PROCESS CLAUSES
General
The Due Process clauses in the Fifth and 14th Amendments) provide two types of protection: substantive and
procedural. Procedural due process guarantees that liberty and property shall not be impaired without some type
of notice and hearing. The substantive due process analysis should start with determining whether the law is an
economic or social regulation or whether a fundamental right is involved. If economic or social regulations are
involved, the court will ordinarily use the traditional test that the regulations are presumed valid if they bear a
rational relationship to the end sought. If fundamental rights are affected, the strict scrutiny test is used to say that
the regulation is invalid unless it is necessary to promote a compelling governmental interest.
Privileges and Immunities
It was early held that guarantees from the Bill of Rights are NOT privileges and immunities of national
citizenship protected from state abridgement under the 14th Amendment P&I clause. Slaugherhouse Cases.
Due Process
After Slaughterhouse, the SC held that provisions of the BoR that were sufficiently fundamental could be
protected from state abridgement through the 14th Amendment Due Process clause. The Court has since
selectively incorporated a number of the Amendments as applying to the states in addition to the federal
government.
Equal Protection
The 14th Amendment guarantees “equal protection of the laws” by actions of the states. While there is no similar
provision in the Constitution applying to the federal government, it has been held that most acts of the federal
government that would deny equal protection constitute a “deprivation of liberty” under the Fifth Amendment
Due Process clause.

SUBSTANTIVE DUE PROCESS
General
The Due Process Clauses place substantive limitations on government action. What is deemed constitutional
depends on whether the nature of the interest is 1) economic or social, or 2) fundamental person rights.
Economic and Social Regulations
In the first part of the 20th century, the SC reviewed the substance of legislation and used the DP clause to
invalidate economic and social regulations. The basic rationale was that the legislation unreasonably interfered
with liberty and property. However, these were made by the personal judgments of the Justices about whether the
means used were reasonably related to a legitimate end. In Lochner, the court held that a law limiting the number
of hours bakers could work interfered with their freedom to contract. The means used was not reasonably related
to the ends. The modern approach has been to defer to legislative judgments with respect to economic and social
regulations. United States v. Carolene Products (holding that the SC will not weigh the wisdom of the legislation
or substitute its own judgment for that of the legislative body). In Carolene, Congress adopted a statute
prohibiting the interstate shipment of skimmed milk that had been combined with certain oils. The effect of this
was that public health and safety measures became effectively immune from a general Due Process attack. Nebbia
v. New York (States can regulate retail prices of milk industry even if it inhibits making Ks if there is a reasonable
relationship to a proper legislative purpose); Williamson v. Lee Optical (SC can’t strike down state laws just
because they are unwise. People should protect against legislative abuse by voting). As a result, the SC has not
struck down any economic regulation by state legislation as a violation of substantive due process since 1937.
Power of Eminent Domain
The 5th Amendment says that private property shall not be taken for public use without just compensation. This
restriction on taking applies to the states through the 14th Amendment DP clause. This takings clause triggers a
general obligation to pay fair market value when there is a taking. In Berman v. Parker, the SC held that its role
in determining whether a taking is for public use is very narrow. A use is “public” if it is rationally related to a
conceivable public purpose. In Berman, Congress created an agency to acquire and assemble all real property for
the development of blighted areas in DC. The Court held that the concept of public welfare was broad and could
include aesthetic values. Moreover, a use may be “public” if there is a public benefit, even if the property is not
used by the general public. Hawaii Housing Authority v. Midkiff. The basic issue is whether the government
action is a taking, requiring compensation, or whether it is merely regulating under the police power. There is
currently no clear formula but some of the factors include 1) permanent physical invasion, 2) decrease in
economic value. Zoning ordinances and landmark ordinances are typically considered regulation, not a taking.
Vagueness
A law can be held “void for vagueness” under the Due Process clause if it forbids conduct that is incredibly
unclearly defined.

CONTRACTUAL OBLIGATIONS
General
The Contract Clause says that states cannot pass laws that impair the obligation of contracts. This only applies to
state legislature, not to state courts. In Home Building & Loan v. Blaisdell, the SC said that a law impairs a K if it
substantially invalidates the obligations or kills the substantial contractual rights. The more substantial the
impairment is, the greater justification the state must provide. Here, MN passed a law that permitted extentions to
foreclosures. The Blaisdell’s obtained an extension and the plaintiff claimed this violated the Contract Clause.
The SC found that there was an impairment but found the impairment justified. Regarding “obligation,” this
includes the legal rules in force when the contract was made. In US Trust v. NJ, both states passed statutes
prohibiting port authority funds to finance passenger railroads unless they were selfsupporting. They later
repealed the statutes in order to permit greater subsidizing. The trust company challenged on Contracts Clause
grounds and the SC held the repealing acts void.
Modification
Some modifications are allowed. These modifications are okay if they 1) serve a legitimate public interest, and 2)
are reasonable and narrowly tailored means of promoting that interest. Therefore, the court will assess the
severity of impairment, reliance, breadth of problem, whether the area is already regulated, and whether the law
is permanent or temporary.

EQUAL PROTECTION
General
EP clause of 14th Amend limits governmental discrimination by states. The Due Process clause of the 5th Amend
limits similar discrimination by the federal government. Given that all laws discriminate, EP clause is not a
guarantee that all people will be treated exactly the same under every law. Therefore, the court has established
three tests:
    1. If the classification made is not based on a suspect or quasi-suspect criteria and does not discriminate
        against a fundamental right, it will be upheld if it is rationally related to a constitutionally permissible
        state interest. These classifications will be presumed valid and must be “arbitrary” to be invalid.
    2. If the action intentionally discriminates against a suspect class, the strict scrutiny standard will be applied.
        The law will be invalid unless it is necessary to promote a compelling sate interest. This standard is very
        difficult to meet.
    3. If the classification is based on a quasi-suspect criteria (e.g. gender, legitimacy), an intermediate level test
        is used. The law is valid if the regulation is substantially related to important government objectives.
Rational Basis Test
State law is upheld if it is rationally related to a constitutionally permissible state interest. There is extreme
judicial deference to the legislature under this test and very few laws are struck down.
Strict Scrutiny
Government action that intentionally discriminates against suspect classes are subject to this test. The law will
not be upheld unless it is necessary to promote a compelling state interest. Necessary is narrowly tailored to
mean that there cannot be any alternative that would be less burdensome. Almost all intentional government
discrimination has been held invalid under this test. The person alleging this discrimination has the burden of
showing that it is intentional.
Historical perspective: Strauder v. West invalidated a state murder conviction because the state prohibited blacks
from serving on juries. The SC held that the 14th amendment prohibited any law that implied inferiority of
blacks. However, in Plessy v. Ferguson the SC upheld a LA statute requiring separate but equal railway cars
saying that while the Reconstruction amendments required equality, they did not have to be mixed to guarantee
equality.
Intermediate Level of Scrutiny
Classifications based on gender and legitimacy are not “suspect” but rather are “quasi-suspect” classifications .
Just as with race and national origin, laws that don’t intentionally discriminate against quasi-suspect classes are
judged by the rational basis test. However, if they intend to discriminate the law is only upheld if it is
substantially related to an important government objective. Discrimination against the poor are not quasi-suspect.

STATE ACTION
13th Amendment
Different from 14th and 15th because it protects more than just infringement by the government. 13th Amendment
is not limited to the “state action” requirement, but includes private actions as well.
14th and 15th Amendments
The acts of private individuals DO NOT fall within prohibition of these amendments. Only “state actions” are
restricted. Civil Rights Cases (allowing private individuals to discriminate freely b/c it was not a “state action”).
Monopoly businesses, shopping centers and even regulated businesses are not “state actions.” Government
functions like managing elections are “state actions.” If the government significantly encouraged the acts of
discrimination they can violate EP clause.

CONGRESSIONAL POWER TO ENFORCE RIGHTS
General
Pursuant to the necessary and proper clause and the enabling clauses of the 13th, 14th and 15th Amendments,
Congress is authorized to protect the exercise of constitutional rights.
Necessary and Proper Clause
There are several constitutional rights of national citizenship. These rights are secured against private as well as
government action. This includes the right to travel interstate or vote in federal elections.
13th Amendment
If Congress could rationally determine that the conduct it is making criminal imposes a “badge of slavery” on its
victim, it can remedy interference by anyone, including private individuals. Jones v. Alfred H. Mayer. Therefore,
it seems that Congress may prohibit basically all discrimination against blacks under this power.
14th Amendment
Under the enabling clause in Section 5 of the 14th Amendment, Congress has the power to remedy violations of
equal protection and due process. Katzenback v. Morgan. This includes the power to remedy 14th Amendment
violations as well as conduct that is not in and of itself unconstitutional. For example, in Katzenbach Congress
was held to have the power to forbid states from requiring people to pass English literacy tests in order to vote,
even though the SC would not find these tests to be unconstitutional. The SC was able to perceive a rational basis
for Congress’s judgment. However, while Congress’s power under the Enabling Clause is extensive, it is not
unlimited. While Congress can enforce the 14th Amendment, it cannot create new constitutional rights. City of
Boerne v. Flores (holding that Congress could not expand the substantive First Amendment rights beyond those
the court already recognized); Kimel v. Florida Board of Regents (holding Congress could not use Enabling
Clause to broadly restrict age discrimination by state employers); United States v. Morrison (Congress could not
use the Enabling Clause to provide a civil remedy for victims of gender-motivated violence because EP requires a
“state action” and statute was not directed at states)
Congruence and proportionality: while Congress has wide latitude to remedy violations of the 14th Amendment,
there must be “congruence and proportionality” between the injury to be prevented and the means adopted. City
of Boerne v. Flores; Board of Trustees v. Garrett (holding that under 14th Amendment EP clause, disabled people
only had a right to be free from irrational state discrimination – rational basis test); Nevada Dept. of HR v. Hibbs
(upholding Cong. power under Enabling Clauseto grant relief benefits because states had relied on gender
stereotypes and were subject to the “heightened scrutiny” intermediate test).




Other
Favorite Concurrence: Thomas in Lopez
Gibbons v. Ogden saying that commerce includes any commercial intercourse and clearly includes “navigation.”
Cooley rejecting Gibbons interpretation that the Commerce Clause is exclusive but distinguishing between local
and national issues. Hamer saying that Congress could not regulate manufacture because this is a local activity
but Darby overruling this, opening the door for the theory that anything that substantially affects interstate
commerce can be regulated. Wickard v. Filburn saying that wholly intrastate activities that only have a negligible
effect can still be regulated if the aggregate affect of many people doing that activity could influence interstate
commerce. Given this progression towards an ever broader interpretation of the Commerce Clause, Thomas was
well-founded in taking a deep, hard look at the constitutional text and the intent of the Framers.

Thomas’s concurrence in Lopez adheres closest to the constitutional text. In his concurring opinion, he explains
why he supports the majority which stated that banning the possession of guns within school zones was beyond
Congress’ power under the Commerce Clause. Thomas argued that the Court has strayed far from the original
meaning of the Commerce Clause when it was originally enacted by the founders. Thomas argues that structural
and textual problems have merged with the Court’s broad interpretation of the Commerce Clause. He references
the Federalist papers which suggest that “commerce” was distinct and separate from other activities like
“agriculture” and “manufacture” rather than a blanket term that encompassed them all. In particular, he claims
that if commerce could not have been meant to include manufacturing because you cannot manufacture with
foreign nations or with Indian Tribes. Moreover, he argues that the current affectation doctrine which gives
Congress to authority wholly intrastate activities that substantially affect interstate commerce. Again he makes a
textual argument saying that Congress could easily have written the Commerce Clause in this way if that is what
they desired. They could have said that Congress has the power to regulate activities that substantially affect
interstate commerce or commerce with foreign nations but they specifically chose not to. He further argues that
their purposely underinclusive definition of “commerce” is the only one that can be logically understood from the
surrounding text. He argues that by combining the Commerce Clause with the Necessary and Proper clause
Congress basically has incredibly broad powers to regulate just about everything. If this were the correct
interpretation it would make much of the rest of Article I, Section 8 superfluous. For example, through the CC
and N&PC, Congress would clearly be able to create post offices, raise Armies, and grant patents. Therefore, an
interpretation of the Commerce Clause that would make the rest of Section 8 meaningless cannot be the correct
interpretation. The reason I like this concurrence is that it gets at the heart of the issues in the Commerce Clause.
It recognizes that the premise of the American constitution is that national government is derived from the people
and is, therefore, a government of limited powers. Federalism reflects the belief in the value of diversity and the
need to prevent the accumulation of power even while seeking the benefits of union. Under the 10th Amendment,
powers not delegated to the national government are reserved to the states or to the people. Part of the purpose of
this amendment, as reflected in Kennedy’s concurrence in the same opinion, was to ensure the States could
perform their role as laboratories for experimenting various solutions to the nation’s problems. Given that almost
anything can have an effect on interstate commerce as well as the emergence of the dormant commerce clause,
states are slowly being squeezed of their powers to regulate intrastate commerce or even activities that are wholly
unrelated to commerce or economic policies.



The premise of American constitutionalism is that the national governmental power is derived from the people.
Thus, this is a government of limited powers. Federalism reflects the belief in the value of diversity and the need
to prevent accumulation of power even while seeking the benefits of union. Under the Tenth Amendment,
powers not delegated to the national government are reserved to the states respectively, or to the people.
Nevertheless, Article I, Section 8, Clause 3 appears to give Congress complete authority to regulate commerce
among the states. Given that almost anything can have an effect on interstate commerce, the power under this
clause could potentially be used to control everything in one’s life. If this were the case, the enumerated powers
in Article I, Section 8 would be redundant and Article I, Section 10 placing limits on the states would be
unnecessary. This impedes the concepts of federalism and the interest in division of powers. Therefore,
interpreting the Commerce Clause is all about interpreting its appropriate limits. Historically, there seems to be
support for the idea that, after the failure of the Articles of Confederation, there were real worries about the new
nation’s ability to regulate foreign commerce. It is possible that the initial rationale for the Commerce Clause was
1) to promote free trade by preventing individual states from taking protectionist measures against other states
and 2) allow the US to adopt protectionist policies for the country as a whole when it might preserve the countries
interests. The major problem with early American federalism was the collective action problem of getting states
to cooperate with each other. Almost every situation involving trade among the states or with foreign nations
created incentives for states to free-ride or cheat on the arrangement. To solve the free-riding problem, they
wanted to create a constitution that made some agreements mandatory. To solve the cheating problem, they
wanted to make some cooperative agreements enforceable. The constitution attempts to effectuate these goals
with a system of checks and balances and providing a finite list of things that Congress can do and some
examples of what they cannot do. Therefore, an interpretation that Congress should have full control to use the
Commerce Clause to regulate almost anything, under the guise of interstate commerce seems contrary to the
purpose and intent of the drafters. In Gibbons v. Ogden, Marshall stated that the reading of “commerce” should
be broad and should include any commercial “intercourse” among the states and with foreign nations. Marshall
argued that the commerce power was exclusive and therefore precluded the states from having any concurrent
power or ability to regulate in these areas. However, Marshall’s opinion in Gibbons does not clearly define the
limits of the definition of commerce. Prigg shows the danger of granting Congress exclusive powers when it
used the Fugitive Slave Clause to essentially allow kidnapping. In Cooley v. Board of Wardens, Justice Curtis
addresses the question of whether the commerce power is concurrent or exclusive. He rejects the general
exclusivity theory holding that the state statute requiring a local pilot to accompany boats going through the
harbor was a valid exercise of the states police power. Rather, he distinguishes between local and national
matters but again fails to identify when a matter is one or the other.
Slaughterhouse
In Dred Scott, Taney declared that blacks could not be citizens. The fundamental purpose behind this move was
to prevent blacks from claiming the privileges and immunities of citizenship. With the adoption of the 14th
Amendment, blacks became citizens. However, in Slaughterhouse, the majority opinion gutted the meaning of
that by stripping citizenship of having any important legal consequences. Therefore, the primary problem with
majority’s argument in Slaughterhouse is that it does not address how his interpretation of the privileges and
immunities clause is consistent with the accepted purpose of protecting former slaves fundamental rights. Rather,
under his interpretation, as soon as blacks became citizens, the concept of citizenship was drained of all meaning.
Field’s dissent in this 5-4 decision, while the most rationale interpretation of the 14th Amendment privileges and
immunities clause, was also flawed. He mistakingly believed that the P&I clause of the 14th Amendment
basically encapsulated the P&I clause of Article IV. A better historical interpretation would be that they each
protected the privileges and immunities of citizens against different forms of discrimination. Article IV prevented
states from discriminating against the privileges and immunities of out-of-staters. The 14th Amendment, on the
other hand, prevented states from discriminating against the privileges and immunities of citizens based on race
and, potentially, classifications of citizens analogous to racial classifications. Field’s opinion, which is closest to
this interpretation, was better than Bradley’s dissent that argued that these rights were protected under a theory of
substantive due process. While this, together with a broader reading of the equal protection, was eventually
where the court found the appropriate protections, the court did not need to invent this concept of substantive due
process, which has no textual basis in the constitution, to adequately protect against the discrimination the 14th
Amendment sought to protect.

In Dred Scott, the Supreme Court held that blacks could not be citizens. The fundamental purpose of this
decision was to prevent blacks from claiming the privileges and immunities of citizenship. With the adoption of
the 14th Amendment blacks became citizens. However, in Slaughterhouse, the majority opinion gutted the
meaning of citizenship by limiting the privileges and immunities protected to those arising out of national
citizenship. This essentially gutted the clause from having any important legal consequences. Under this
interpretation, as soon as blacks became citizens, the concept of citizenship was drained of meaning. The primary
problem with the majority opinion in Slaughterhouse is that it does not address how its interpretation of the
privileges and immunities clause is consistent with the accepted purpose of protecting former slaves fundamental
rights. While Field’s dissent had its own flaws, it came closest to a true understanding of the intent of the 14th
Amendment privileges and immunities clause. While the majorities interpretative problem was
underinclusiveness (too few privileges were protected), Field’s opinion was overinclusive. It argued that the 14th
Amendment P&I clause encapsulated the P&I clause of Article IV. A better historical interpretation was that
both the P&I clause of the 14th Amendment and that of Article IV are meant to protect discrimination. Article IV
P&I prevents states from discriminating against the privileges and immunities, including the fundamental rights,
of out-of-staters. The 14th Amendment P&I clause should have been interpreted as preventing states from
discriminating against the privileges and immunities of citizens based on race, or other analogous types of
discrimination. Field’s dissent is the closest to this interpretation. Bradley’s dissent, on the other hand, argued
that these rights were protected under a theory of due process. While this, together with a broader understanding
of the equal protection clause, was eventually where the court found the appropriate protections, the Court did not
need to invent this concept of substantive due process. Substantive due process has no textual basis in the
constitution and its creation creates no general rule for addressing questions. Anything is fair game to bring up
under the concept of substantive due process. The ramifications of this failure were apparent in the Court’s
decision in Plessy to uphold the concept of the separate but equal doctrine. The Court upheld a LA statute
requiring railroads to carry passengers within the state but to provide separate but equal accommodations for
blacks and whites. The majority opinion held that this law did not violate either the 13th or 14th Amendments.


and therefore could not enjoy the privileges and immunities of citizenship.

Plessy v. Ferguson
In Plessy v. Ferguson, a LA statute required railroads carrying passengers within the state to provide equal but
separate accommodations for the white and colored races. If a passenger on a coach refused assignment to a
particular compartment, the officer has the power to refuse to allow the passenger on the train. Plessy, who was
7/8th white and 1/8 black, attempted to sit in a coach designated for whites. He was not allowed on the train and
he challenged the constitutionality of the state law. The majority opinion held that the state law did not violate
either the 13th or the 14th Amendments. Regarding the 13th Amendment, the majority opinion held that slavery
implies a state of bondage. A statute that simply distinguishes between white and colored races does not create a
badge of servitude and does not destroy the legal equality of the two races. Regarding the 14th Amendment, the
court admitted that the purpose was to enforce the absolute equality of the two races. However, the court held
that it was not intended to abolish distinctions based on color to enforce social issues. The court held that the
separation of the races, as applied to internal commerce within the state, did not abridge the privileges or
immunities of the colored man, did not deprive him of his property without due process of law, nor denied equal
protection of the laws. In his dissent, Harlan argues that the state is regulating the use of a public highway by
citizens of the United States based solely upon the basis of race. He argues that the 13th Amendment not only
struck down slavery but also prevents the imposition of any burdens or disabilities that constitute badges of
slavery or servitude. He argues that our constitution is “color-blind.” The majority opinion does not address the
fact that this is a violation of the railroads right to contract. It prevented Plessy from purchasing a ticket on the
white car. The fact that this was symmetrical is irrelevant because in both cases, the privilege and immunity is
being abridged. The court here assumed they were bound by the Slaughterhouse precedent which made the
privileges and immunities clause of the 14th Amendment largely inapplicable as a means of striking down state
legislation. It distinguished between the privileges and immunities of citizens of a state as being separate from
the relatively narrow and few privileges and immunities of citizens of the US. The court in Plessy would have
been better off overruling Slaughterhouse and determining that Plessy’s privileges and right to contract were
being violated by a state statute in violation of the 14th Amendment. Moreover, even if the court did not want to
overrule Plessy they could have argued that the equal protection clause could be used to outlaw statutes against
blacks. Recognizing that the 14th Amendment was intended to be a generic representation of the Civil Rights Act,
it appears that the drafters of the 14th Amendment intended for it to protect an even broader amount of
discrimination than just racial discrimination. Regardless, the Civil Rights Act discussed the need to protect the
rights of blacks in terms of their ability to make and enforce contracts, to sue, etc. This right to contract is best
considered a basic privilege and immunity protected under that clause of the 14th Amendment. By failing to
overrule Slaugherhouse, the Plessy court paved the way for other poor decisions such as Lochner v. NY which
was forced to create a new right of substantive due process in order to overcome the limitations from
Slaughterhouse and Plessy.

Lochner v. New York
Lochner used substantive due process to claim that a state’s law regulating the number of hours a baker could
contract to work was unconstitutional as a violation of his 14th Amendment due process. However, the due
process clause of the 14th Amendment never had to do with regulation of the economy. If the 14th Amendment
had been interpreted the way it was intended, and if Plessy had decided to overrule Slaughterhouse we could have
avoided the creation of this new, ambiguous concept of substantive due process in favor of a simpler approach.
The simpler approach would be to determine whether the state law abridged a privilege and immunity based on
race. This would also be consistent with the privileges and immunities clause of Article IV. Article IV has been
interpreted as being an antidiscriminatory statute as well, preventing states from discriminating against out of
staters with regards to basic fundamental rights. Similarly, if Plessy had overruled Slaughterhouse, the privileges
and immunities clause of the 14th Amendment could have been interpreted as an antidiscriminatory statute
preventing the abridgment of basic fundamental rights based on race. This would have left the due process clause
to ensure that a citizen’s rights to certain procedural processes would not be infringed. Furthermore, the equal
protection clause could have been viewed as authorizing Congress to legislate to ensure that the legal process was
adequately protecting the infringement of basic rights based on racial prejudice by requiring equal protection.
Furthermore, this crippling of the privileges and immunities clause has made it very difficult to make a strong
legal argument for how the bill or rights is being incorporated against the states, in addition to the federal
government. You can’t really make a strong substantive due process argument but you could say that these are
basic privileges and immunities and therefore that the states cannot abridge these rights based on the 14th
Amendment P&I clause.

Good majority opinions
   - Lopez (placing limits on CC)/Morrison (restrictions based on economic activity)
   - Printz/NY (limited Cong. ability to effectuate policy through states)

Good majority with Bad outcome
   - San Antonio mass-transit had to abide by federal minimum wage laws. 10th Amendment did not apply.

Bad Majority
   - Garcia (full deference to Cong. on CC)
   - Plessy (should have overruled Slaughterhouse
   - Slaughterhouse (limited P&Is)
   - Lochner (economic substantive due process – not a place for the courts – should have been based on P&I)
   - Philly v. NJ, C&A Carbone – should have been decided based on the comity clause, not DCC

Good concurring opinions
   - Thomas in Lopez (arguing that the CC has been misconstrued)
   - Jackson in Steel Seizure Case

Good Dissenting opinions
   - Slaughterhouse (arguing that P&Is included those of the states)
   - C&A Carbone (saying DCC was a mistake)
   - Thomas in Raich

Thomas’s opinion in Gonzalez v. Raich (and his concurring opinion in Lopez) is most inline with the text and
intent of the Constitution. In his opinion, Thomas explains why Congress exceeded its authority under the
Commerce Clause in prohibiting residents of California from using marijuana in limited circumstances in
accordance with the state’s “Compassionate Use Law.” Thomas’ opinion adheres closest to the constitutional
text. Under Article I, § 8 of the Constitution, Congress is provided the power to regulate interstate commerce and
commerce with foreign nations. First, Thomas argued that “commerce,” as originally intended, was separate from
agriculture and manufacturing. The federalist papers referred to these as separate activities. In one of its first
Supreme Court decisions, Gibbons v. Ogden, the Supreme Court held began expanding the meaning of
“commerce” by claiming that Congress’ power under the Commerce Clause included the power to regulate
navigation. Moreover, it claimed that this power was exclusive thereby paving the way for the expansion of the
commerce clause in situations where Congress hasn’t spoken (i.e. dormant commerce clause). While the Court
restricted this definition in Cooley, stating that the power was not exclusive, but was rather concurrently held with
the states, Cooley was largely ignored. The Court tried again to adhere to the original understanding of
“Commerce” in Hamer v. Dagenhart when it ruled that Congress has exceeded its authority in regulating the
manufacturing aspects of goods intended for interstate commerce. However, this interpretation was overruled in
United States v. Darby where the Court first adopted the idea that activities that affected interstate commerce
could be regulated by Commerce under its commerce powers. This drastically expanded the power and meaning
of the Commerce Clause. Then, in Wickard v. Filburn, the Court further expanded this power stating that even a
wholly intrastate activity that had minimal effect on interstate commerce could be regulated as long as the
aggregate effect of many people performing the same activity could substantially affect interstate commerce. At
this point, the commerce clause had expanded so far that it is difficult to imagine what Congress would not be
able to regulate. Therefore, Thomas’ first argument was that the term “commerce” has expanded considerably
from its initial meaning when the Constitution was written.

Thomas’ next argument was that this affection doctrine, that Congress could regulate any activity substantially
affected by interstate commerce, is clearly not within the Constitution. The framers could have written the clause
to say that Congress could regulate any activity that “substantially affects” commerce with foreign nations or
among the states but it did not. Therefore, he argues that this entire affectation doctrine was not intended by the
framers and cannot be found within the constitution.

He further makes the argument that this broad interpretation of the commerce doctrine could not possibly be the
correct one because of the structural and textural problems it creates in other aspects of the constitution. In
particular, he argues that this broad interpretation renders other aspects of Article I, Section 8 superfluous. In
particular, if Congress can regulate anything that substantially affects interstate commerce then the ability to raise
Armies, grant patents, and create post offices could all be considered powers under the commerce clause. Given
that an interpretation of a clause in the constitution that would render other clauses meaningless is unacceptable,
Thomas argues persuasively that the commerce clause must be more limited than the current doctrine suggests.

Moreover, he argues from a historical perspective that the federalist nature of American government has always
been that the national government is one of limited, enumerated powers and that all other powers not enumerated
or expressly denied are reserved to the states (or the people) under the Tenth Amendment. He argues that such an
expansive reading of the Commerce Clause, combined with the Necessary and Proper clause renders the Tenth
Amendment almost meaningless because it is hard to envision anything that Congress could not regulate under its
commerce power.

The reason I like this dissent is that it gets at the heart of the issues of the Commerce Clause. The United States
government was founded on the concept of federalism and the assumption that the national government is one of
limited powers. Federalism reflects the belief in the value of diversity and the need to prevent the accumulation
of power even while seeking the benefits of union. Part of the goal of the Tenth Amendment was to ensure that
States could perform their role as laboratories for experimenting with various solutions to the nation’s problems.
Given that almost any activity, when aggregated extensively, can have an affect on interstate commerce,
particularly in light of the technological revolution that has made globalization significantly more prevalent, states
are being squeezed of their powers to regulate intrastate activities. The problem is getting worse with the advent
of the dormant commerce clause which, like the affectation doctrine, has no basis in the Constitution. To keep
with the intentions of the Framers, the text of the Constitution, and the balance of powers inherent in federalism,
Thomas’ approach to the Commerce Clause should be taken more seriously by the Court.



The reason I like this concurrence is that it gets at the heart of the issues in the Commerce Clause. It recognizes
that the premise of the American constitution is that national government is derived from the people and is,
therefore, a government of limited powers. Federalism reflects the belief in the value of diversity and the need to
prevent the accumulation of power even while seeking the benefits of union. Under the 10th Amendment, powers
not delegated to the national government are reserved to the states or to the people. Part of the purpose of this
amendment, as reflected in Kennedy’s concurrence in the same opinion, was to ensure the States could perform
their role as laboratories for experimenting various solutions to the nation’s problems. Given that almost anything
can have an effect on interstate commerce as well as the emergence of the dormant commerce clause, states are
slowly being squeezed of their powers to regulate intrastate commerce or even activities that are wholly unrelated
to commerce or economic policies.

that Congress’ power to regulate “commerce” for the purposes of the commerce clause included the ability to
regulate navigation.


Gibbons v. Ogden saying that commerce includes any commercial intercourse and clearly includes “navigation.”
Cooley rejecting Gibbons interpretation that the Commerce Clause is exclusive but distinguishing between local
and national issues. Hamer saying that Congress could not regulate manufacture because this is a local activity
but Darby overruling this, opening the door for the theory that anything that substantially affects interstate
commerce can be regulated. Wickard v. Filburn saying that wholly intrastate activities that only have a negligible
effect can still be regulated if the aggregate affect of many people doing that activity could influence interstate
commerce. Given this progression towards an ever broader interpretation of the Commerce Clause, Thomas was
well-founded in taking a deep, hard look at the constitutional text and the intent of the Framers.

Thomas’s concurrence in Lopez adheres closest to the constitutional text. In his concurring opinion, he explains
why he supports the majority which stated that banning the possession of guns within school zones was beyond
Congress’ power under the Commerce Clause. Thomas argued that the Court has strayed far from the original
meaning of the Commerce Clause when it was originally enacted by the founders. Thomas argues that structural
and textual problems have merged with the Court’s broad interpretation of the Commerce Clause. He references
the Federalist papers which suggest that “commerce” was distinct and separate from other activities like
“agriculture” and “manufacture” rather than a blanket term that encompassed them all. In particular, he claims
that if commerce could not have been meant to include manufacturing because you cannot manufacture with
foreign nations or with Indian Tribes. Moreover, he argues that the current affectation doctrine which gives
Congress to authority wholly intrastate activities that substantially affect interstate commerce. Again he makes a
textual argument saying that Congress could easily have written the Commerce Clause in this way if that is what
they desired. They could have said that Congress has the power to regulate activities that substantially affect
interstate commerce or commerce with foreign nations but they specifically chose not to. He further argues that
their purposely underinclusive definition of “commerce” is the only one that can be logically understood from the
surrounding text. He argues that by combining the Commerce Clause with the Necessary and Proper clause
Congress basically has incredibly broad powers to regulate just about everything. If this were the correct
interpretation it would make much of the rest of Article I, Section 8 superfluous. For example, through the CC
and N&PC, Congress would clearly be able to create post offices, raise Armies, and grant patents. Therefore, an
interpretation of the Commerce Clause that would make the rest of Section 8 meaningless cannot be the correct
interpretation.

				
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