Constitutional Law
Spring 2008
Professor Fischer
Class 9: The Commerce Clause I
Era 1: 1824-1890s
Era 2: 1890s-1936
The Commerce Clause
• Article I § 8 cl. 3: “The Congress shall
have the power . . . .[t]o regulate
Commerce with foreign Nations, and
among the several States, and with the
Indian Tribes . . .”
4 Eras of Commerce Clause
Interpretation
•
•
•
•
ERA 1: 1824-1890s
ERA 2: 1890s-1936
ERA 3: 1937-1995
ERA 4: 1995-present
3 Questions for Each Era
• 1. What is “Commerce”?
• 2. What is “among the . . . States”?
• 3. Does the Tenth Amendment limit the
commerce power?
The Tenth Amendment
• The powers not delegated to the United
States by the Constitution, nor
prohibited to it by the States, are
reserved to the States respectively, or
to the people.
Gibbons v. Ogden (1824) [C p.
113]
Marshall: 3 Questions in
Gibbons v. Ogden
• 1. What is “Commerce”?
• 2. What is “among the . . . States”?
• 3. Does the Tenth Amendment limit the
commerce power?
ERA 2 1890s-1936: What is
“Commerce”?
• United States v. E.C. Knight Co. (1895)
[C p. 117] and Carter v. Carter Coal Co.
(1936) [C p. 118]
United States v. E.C. Knight
(1895) [C p. 117]
• Could the Sherman
Antitrust Act
constitutionally
suppress a
monopoly in the
manufacture of a
good (sugar) as well
as its distribution?
United States v. E.C. Knight
(1895) [C p. 117]
• Justice Melville
Fuller (a Mark Twain
lookalike!) wrote the
majority opinion,
joined by 7 other
justices
• Justice Harlan
dissented
Carter v. Carter Coal Co., 298
U.S. 238 (1936) [C p. 118]
• Justice Sutherland
wrote the majority
opinion (one of the
“Four Horsemen”)
• Left the Court in
1938
• Justice Cardozo
wrote a dissent,
joined by Brandeis
and Stone
Era 2: 1890s-1936: Meaning of
“among the . . . States”
• The Shreveport Rate Cases (1914) [C p.
120]
• Schechter Poultry Corp. v. United
States (1935) [C p. 122]
Shreveport Rate Cases (1914) [C
p. 120]
• Justice Charles
Evans Hughes wrote
the majority opinion
• 2 justices dissented
without opinion
Schechter Poultry Corp. v.
United States, 295 U.S. 495
(1935) [C p. 122]
• Chief Justice
Charles Evans
Hughes wrote the
majority opinion,
joined by 6 other
justices
• Justice Cardozo
wrote a concurring
opinion, joined by
Stone
Railroad Retirement Board v. Alton,
295 U.S. 330 (1935) [C p. 124]
• Justice Roberts (the
first) wrote the
majority opinion
• Chief Justice Hughes
joined by Brandeis,
Stone, and Cardozo,
dissented
Era 2: Stream of Commerce
• During this era, the Court was not
consistent in its application of the “stream
of commerce” approach
• Sometimes more broadly defined “among
the states” (e.g. Shreveport Rate Cases)
and sometimes more narrowly, (e.g.
Schechter, Alton R.R. Co.)
Era 2: 1890s-1936: Tenth
Amendment limits on commerce
power?
• The Lottery Case, 188 U.S. 321 (1903)
[C p. 128]
• Hammer v. Dagenhart, 247 U.S. 251
(1918) [C p. 125]
Champion v. Ames, 188 U.S. 321
(1903) [C p. 128]
• 5-4
• Majority opinion
written by Justice
Harlan
• Dissent by Chief
Justice Fuller,
joined by Brewer,
Shiras, and
Peckham
Hammer v. Dagenhart (1918) [C
p. 125]
Hammer v. Dagenhart (1918) [C
p. 125]
• Justice William
Rufus Day wrote the
majority opinion
Hammer v. Dagenhart (1918) [C
p. 125]
• Powerful dissent by
Justice Holmes
(pictured left)
(joined by McKenna,
Brandeis, and
Clarke)
Zone of Activities
• In Era 2, Court accepts that a zone of
activities is reserved to states by Tenth
Amendment and this limits commerce
power (dual sovereignty)
• This zone is not consistently defined?