Constitutional Law Class Notes 1/14/04


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.


What 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, Marshall’s reasoning interpreted the Constitution in general, rather than any particular phrase or section.  He didn’t look at the word “necessary” or the word “proper” and determine what those words mean.  Instead, he looked at the Constitution in general.  Why do we have a Constitution?  What function does the Constitution have?  These questions gave him the guidelines for his understanding of, in particular, the Necessary and Proper Clause.


He 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 United States was outside of Congress’s power.  He didn’t choose the narrow path, he chose the broad path.  This case is important today because we must be aware that the concept of general reasoning is available to the Court, if it so chooses, as a methodology to think about constitutional problems when they arise for the first time.


The Court doesn’t always take this approach, though.  The Court will sometimes take a more “word-specific” approach.


Marshall also issued the first opinion that interpreted the Commerce Clause: Gibbons v. Ogden.


Today, we’ll talk about four key decisions that set the stage prior to Lopez.


Schecter Poultry


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.


The Supreme Court unanimously held that regulating the wages and hours of workers in a factory in Brooklyn is beyond Congress’s commerce power.  The new law was invalidated.  The Supreme Court ruled that even though the chickens moved in the stream of commerce, the workers only worked in Brooklyn and thus their wages and hours were a matter solely for the state of New York to deal with.


Note that this law applied to every slaughterhouse everywhere.


Why did the people in Philadelphia in 1787 scrap the Articles of Confederation and give the U.S. Congress more power with this Commerce Clause?  Compare this to NAFTA or the current Summit of the Americas.  Prior to the adoption of the Commerce Clause, the states of the United States were engaged in protectionist measures against each other.  The Commerce Clause, at least in one view, was originally a free trade measure among the states.  It was meant to fight “economic Balkanization”.  In contemporary terms, we can compare this to the European Union.


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.


Now fast forward to 1935.  If you were to ask James Madison, who came up with the Commerce Clause, about a shop in Brooklyn, he would say “that’s not what we meant!”  He would say that they were only concerned with free trade between New York and, say, New Jersey.


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.


James 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 Marshall did in McCulloch.


Our sense of the Constitution is radically different from the conception of the people who originally wrote the document.


Carter Coal


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.


Why does the transformation happen here?  Roosevelt was going to pack the court.  But note that there are no changes in appointments to the court between 1935 and 1937.  The exact same nine individuals who decided Schecter Poultry unanimously and then decided Carter Coal decided Jones & Laughlin entirely differently.


Roosevelt and Congress are losing cases.  He won’t accept what the Supreme Court says.  Also note that 1936 is an election year.  Roosevelt runs a campaign essentially against the “old farts” on the Supreme Court.  He claims they’re totally out of touch with reality and that it’s really their fault that the Depression hasn’t abated.  It was a pure political power move (I think).


Roosevelt announced after a landslide victory that he’s going to pack the Court (that’s not what he called it, of course).  He was going to destroy the Supreme Court as an institutional of American government as it had heretofore existed because it was getting in the way.  The President was going to more or less sweep the Supreme Court into the “dustbin of history” because they were getting in the way!


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?


Justice Roberts switched sides!  It seems like what he did was switched his vote to save the institution.  That worked!  That was enough to shut Roosevelt up.  The Senate stopped holding hearings on the court-packing plan.  “This is power politics!  This is reality!”


This was a huge transformation in the understanding of the Commerce Clause.  It didn’t happen by way of a constitutional amendment.  Roosevelt considered this but rejected it.  Roosevelt felt that the only way you could trust the Court was by packing the court.  Thus, a whole new way of understanding the Commerce Clause emerged.


Wickard v. Filburn


We have some more appointments, but we have more or less the consolidation of Roosevelt’s power.  The ethos is: Congress can do pretty much whatever it wants in the name of protecting the economy.  It is instructive to compare Schecter Poultry and Wickard.  The tomatoes or wheat being grown at home are agricultural and local in the way that chickens are also agricultural and local.  Seven years after Schecter Poultry, they go from saying “no you can’t regulate it” to “yes you can”!


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.


President 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 Alabama.  Congress says there can’t be any discrimination there because restaurants are a form of commercial activity that receives its products through the stream of interstate commerce!  By the 1960’s, Congress can do that because there’s a whole change in the understanding of the Commerce Clause.  We will give Congress broad latitude to do what they think is in the national interest.


This changes dramatically when we get to Lopez.


Back to Class Notes