CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 10: Commerce Clause II: History of Interpretation of
the Commerce Clause in Era III 1937-mid 1990s
I.
Review of Class 9: Interpretation of “Commerce”, “Among the . .
. States” and the Tenth Amendment’s effect on congressional powers in
Era I (1824-1890s) and Era II (1890s-1936)
II.
Central Themes: Scope of congressional power
III.
Interpretation of the Commerce Clause from 1936-mid 1990s
A. What factors led to the change in approach to the
interpretation of the commerce clause in Era III?
B. Change of Approach to meaning of “commerce”
 NLRB v. Jones & Laughlin (1937) [C p. 131]
C. Change of approach to meaning of “among the . . . States”:
(Substantial) effects test; rational basis scrutiny
i. Regulatory Laws
 United States v. Darby (1941) [C p. 134]
 Wickard v. Filburn (1942) [C p. 136]
 Hodel v. Virginia Surface Mining & Recl. Ass’n
(1981) [C p. 143] – pay attention to Rehnquist’s
concurring opinion which is highly relevant to
approach in Era 4 that we’ll consider in Friday’s
class
ii.
Civil Rights Laws: why are these commerce clause cases
at all? Why not within congressional power under § 5 of
Amendment XIV?
 Heart of Atlanta Motel v. United States (1964) [C p.
139]
 Katzenbach v. McClung (1964) [C p. 141]
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iii.
Criminal Laws
 Perez v. United States (1971) [C p. 143] (three
 categories that Congress has power to regulate
under commerce clause: (i) channels of interstate
commerce; (ii) instrumentalities of interstate
commerce; (iii) intrastate activities with
(substantial) effect on interstate commerce)
D. Approach to Tenth Amendment in Era III
 United States v. Darby (1941) [C p. 134]: Tenth
Amendment is a “truism”
 National League of Cities v. Usery (1976) [C p. 145]
 Garcia v. San Antonio Metropolitan Transit Authority
(1985) [C p. 148] (overruled Usery).
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