Constitutional Law Class Notes 1/26/04


The Tenth Amendment


“If you thought the Commerce Clause was confusing and difficult, I hate to tell you about the Tenth Amendment.”  Con Law is fuzzy!  It seems like there are ranges of fuzziness, especially when it comes to the Tenth Amendment.  Start with the expectation that it’s going to be unsettled and indeterminate.


Reno v. Condon


In this case, the Court started off its analysis with Commerce Clause, finding that there was no Commerce Clause problem.  Why was this law a valid exercise of the Commerce Clause power?  What federal law is being challenged?  It’s the DPPA.  What does the law do?  It restricts the state’s ability to sell personal information about drivers to businesses and other individuals.  The DMVs of each state collect personal information from all drivers.  They used to turn around and sell that information to telemarketers and other unsavory people.


But how is this connected to interstate commerce?  For example, Ohio might sell its driver license information to a telemarketer in Wyoming.  Or they could sell their list to a company in Ohio that also does business in another state.  So the driver license information, though it starts out locally, it becomes a thing in interstate commerce once it gets sold, and thus it is subject to regulation by Congress.


We spent a lot of time on the “substantial effects” test and Wickard and Lopez and Morrison.  Why didn’t they go through an elaborate test like the ones we saw earlier?  The Court’s impression is that this isn’t intrastate stuff.  The information is a good that can and does travel between states.  So there’s no need to get to the “substantial effects” inquiry.


In the Commerce Clause cases, the Court talked about three different things Congress can regulate: “channels” and “instrumentalities” of interstate commerce and things that are intrastate but have a “substantial effect” on interstate commerce.  So how does the information being sold in this case fit into that rubric?  The Court thinks of this as a direct regulation on interstate commerce.


Did this statute have a Commerce Clause hook?  Not exactly.  It also seems like the federal government doesn’t discriminate between information that never leaves the state and the information that goes into interstate commerce.


Recall the “Child Labor Case”.  The law in question was challenged on the basis of the Tenth Amendment, and the Supreme Court invalidated the law at the time.  Later, this decision was overruled.  Now we believe that Congress can regulate goods that crossed state lines, even if the reason they are being regulated is purely intrastate.


Foley thinks that the Court didn’t intend to make a big deal about the Commerce Clause in Condon, but it gives us a clue about what the Court will uphold on Commerce Clause grounds.  So don’t miss the Commerce Clause significance of this case!  Don’t take received wisdom!  (Emanuel put Reno v. Condon in the Commerce Clause section, actually.)


Foley says that being a creative lawyer is to think of a new angle that’s not in the treatise or hornbook.  You use the treatise to get your bearings, but then you go further and come up with your own idea based on different cases than others have thought about.


South Carolina was poorly represented.  Charlie Condon himself went to defend the state in the Supreme Court.  State Attorney Generals have big egos!  Sometimes they make mistakes.  They want all the glory!  But he was going up against Seth Waxman.


The Court more or less decided: “Hey!  We want to give Congress this power, and we think it’s of the kind that Congress should address!  We think they should do so because it’s truly an interstate problem, unlike guns and rape.”  The Court sends a message from all nine justices: This is a power we’ll give to Congress.  But why did Justice Thomas agree?  Hmmm…maybe it had something to do with the fact that privacy rights are at stake.


Why does the Court need to spend any time on the Tenth Amendment once the Court has said that the statute is within the Commerce Clause power?  Why doesn’t that end the question?  Why could something be a problem under the Tenth Amendment?  How could it be a problem under the Tenth Amendment if there’s no Commerce Clause problem?  What’s the reasoning process?


Hypotheticals on the Tenth Amendment


Would it be permissible for Congress to say: “States must destroy DMV records after ten years”?  Congress mustn’t provide overly detailed regulation of state agencies.  States are supposed to be autonomous entities.


One thing that helped this law be constitutional was the fact that it applied both to states and private individuals (though in actuality, these bits were in different parts of the statute).  If the law was directly exclusively at state governments, it might be more likely to violate the Tenth Amendment.


Congress must not force state governments to adopt particular laws or regulations.  Congress can’t order states around with respect to their sovereign capacity.  Lawmaking is one such sovereign capacity.


But what’s the connection between Commerce Clause analysis and Tenth Amendment analysis?


What if Congress required Ohio to move its capital to Cincinnati?  Could we argue that this is permissible under the Commerce Clause?  What about under the Tenth Amendment?


If you moved the capital to Cincinnati, you might get more interstate commerce between Ohio, Indiana and Kentucky.  You could argue that the placement of a state’s capital has an effect on potential or actual interstate commerce.  So we may well conclude that this would be within Congress’s Commerce Clause power.


But such an action would violate a core attribute of state sovereignty.  That’s how the justices think about the Tenth Amendment.  They say that 13 free and independent states fought the revolution separately, and then agreed to an alliance such that they gave up some of their sovereignty, but not all.


The thing to think about the Tenth Amendment is that it’s a question about protecting rights.  The Tenth Amendment does not confer power.  The Commerce Clause confers power.  The Commerce Clause giveth, and the Tenth Amendment taketh away.  The Tenth Amendment guarantees states’ rights just like many of the other amendments protect individual rights.


Reno v. Condon says it makes a difference whether Congress tells states they must do something, as opposed to telling the states that they can’t do something.  Step back and think about this from a common-sense standpoint: This Supreme Court would never allow the federal government to interfere with a state’s choice of where to place its capital within its borders.  The value of preserving the “dignity” of the state of Ohio as a sovereign state would be intruded upon too far no matter how it’s done.


In Con Law, doctrine works in service of fundamental values, not the other way around.  The Court is motivated by the underlying reasons that we have these constitutional principles.  If the Court sees that it has created a doctrinal rule that says there is a big difference between affirmative mandates and negative prohibitions, and they find that this isn’t compatible with some basic idea like state sovereignty, then they’ll change the doctrine to get to where they want to be.


A number of people are trying to articulate the rule or principle that results from the Tenth Amendment cases.  What’s the test?  In Lopez, we had a test.  Here, the test isn’t jumping out at us.  One of the difficulties is whether we can even articulate the test the Court is using to evaluate Tenth Amendment questions.  We should try to come up with a couple of candidates for what the current test is for Tenth Amendment questions.


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