Law Class Notes
Yesterday was great! Foley likes when people come up after class to ask questions! There’s a lot going on here, and we can’t get it all in within an hour.
Foley says constitutional law is much more of an art than a science. You need to get your hands dirty and practice this stuff in order to really get it!
Note that all nine justices agree in Lopez that the Constitution is incredibly imprecise. “That’s just the nature of the beast.”
A bit of a history lesson
We read a ton of history in Chemerinsky. History isn’t important in and of itself. This isn’t a history class where we enjoy history for its own sake; instead, we study history as a means to an end. The goal is to understand current law and what future law might look like. The only reason we care about the past is to help us understand the present and the future. Don’t worry about understanding the details of each stage of Commerce Clause jurisprudence from the beginning of time to the present.
we need to know, first off, is that there was a formative period under Chief
Justice Marshall, who issued the McCulloch
v. Maryland decision. That’s a
landmark decision that created a framework for talking about congressional
power as a whole. Also,
had a choice: he could have interpreted the Necessary and Proper Clause much
more narrowly and restrictively and found that the creation of the Bank of the
The Court doesn’t always take this approach, though. The Court will sometimes take a more “word-specific” approach.
Today, we’ll talk about four key decisions that set the stage prior to Lopez.
This case was decided in 1935. It’s the “sick chicken” case. This case occurred at the time of the New Deal. The country is in the midst of the Depression. The unemployment rate is 25%. Congress and President Roosevelt are trying to deal with what they see as an unprecedented economic calamity. Congress passes a lot of New Deal legislation.
One key piece of legislation was the National Industrial Recovery Act, which regulated the wages and hours of workers in many different industries.
Supreme Court unanimously held that
regulating the wages and hours of workers in a factory in
Note that this law applied to every slaughterhouse everywhere.
did the people in
The framers of the Constitution wanted to create a free-trade agreement between the original thirteen states. That’s all the Commerce Clause was originally designed to do.
fast forward to 1935. If you were to ask
James Madison, who came up with the Commerce Clause, about a shop in
In addition, the Commerce Clause allows Congress to regulate foreign trade.
The point is that nothing that we talk about today would make any sense to the framers of the Constitution. “Congress has the power to regulate WHAT??!!” They wouldn’t even be able to understand our conversation.
What’s going to be difficult to think about is when we get to the point where we can start having a conversation like we did yesterday.
Madison did not believe that Congress had the power to create a national
bank. He had a much narrower
understanding of the Commerce Clause than we do. In fact, he had a narrower understanding than
Our sense of the Constitution is radically different from the conception of the people who originally wrote the document.
This case is one year later. We’re still in the Depression. Congress and Roosevelt adopt a new law that regulates the coal industry in particular. They believe that coal is particularly important to the national economy. It’s important for running the railroads and making steel. Congress says: “We won’t do poultry, but let’s do coal.”
They plan to regulate the wages and hours of coal workers because that affects the price of coal. But by a 5-4 decision, the Supreme Court says that Congress can’t do that! They reason that a coal mine is not interstate in nature because each mine is located in only one state. Therefore, the wages that a mine worker gets for working in that particular mine is a local issue of the state where the mine is located. Each state controls the conditions within the mines within that state. The Court believes that it matters neither that the coal will enter the stream of interstate commerce, nor that Carter Coal does business in many different states. The subsequent entry of the coal into interstate commerce doesn’t matter. But notice that now we’re starting to get a split.
Jones & Laughlin
This case comes up in 1937. This case involves the National Labor Relations Board. Congress comes up with a new law to govern working conditions: hours, wages, and so on in many different industries. The statute looks a lot like the NIRA above, but the case looks more like Carter Coal.
The issue is: Can Congress regulate the rules of the employees of this company when they work in the mines or in particular factories? If you considered Schecter Poultry and Carter Coal as precedent, you might think the conclusion is obvious and the law can’t stand.
But in a reversal, the Supreme Court by a 5-4 margin allows the law to stand as applied. The Supreme Court argued that steel is essential to the health of the national economy, and thus steel worker strikes would cripple interstate commerce. This is exactly the reverse of the reasoning in Carter Coal, that is, it’s the reasoning of the dissenter. The same argument from the dissent in the previous case becomes the prevailing argument in this case.
does the transformation happen here?
and Congress are losing cases. He won’t
accept what the Supreme Court says. Also
note that 1936 is an election year.
The Supreme Court justices read the newspaper and they pay attention to what’s going on. They realize that they can’t win this fight! They act to save their institution! Ain’t this exciting?
Roberts switched sides! It seems like
what he did was switched his vote to save the institution. That worked!
That was enough to shut
was a huge transformation in the understanding of the Commerce Clause. It didn’t happen by way of a constitutional amendment.
Wickard v. Filburn
have some more appointments, but we have more or less the consolidation of
These cases are not consistent doctrinally. They represent two radically different ways of understanding the Commerce Clause.
Now fast-forward to right before Lopez: between Wickard in 1942 and Lopez in 1995, the prevailing ethos is that Congress can do whatever it wanted in an era of believing in Big Government and the power of the federal government.
Johnson talked about the Great Society.
One of the critical aspects of the Great Society was the Civil Rights
Act and the idea that Congress would have the authority to protect civil
rights. The Act was justified under the Commerce
Clause. Think of Ollie’s Barbeque, a really local restaurant in
This changes dramatically when we get to Lopez.