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]
1
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).
2