Constitutional
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.
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,
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
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.
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
Note
that this law applied to every slaughterhouse everywhere.
Why
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.
Now
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.
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
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
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?
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
This
was a huge transformation in the understanding of the Commerce Clause. It didn’t happen by way of a constitutional amendment.
Wickard v.
Filburn
We
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.
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
This
changes dramatically when we get to Lopez.