CONSTITUTIONAL LAW
CLASS 7
January 23, 2007
The Commerce Clause I
History of Interpretation Up to 1995
INTERPRETATION:
IMPORTANCE
• Tushnet:
• “only method practically available in
US constitutional law to deal with
change and its consequences for the
constitutional code.”
VAGUE TERMS: “Commerce”,
“Among the . . . States”
• COMMERCE CLAUSE ART. I § 8, cl. 3:
Congress has the power "[t]o regulate
Commerce with foreign Nations, and
among the several States. . . .“
GIBBONS v. OGDEN (1824) (CB
p. 124)
SINCE GIBBONS
• Many cases before the Court have concerned
the scope of the commerce power
• Over time, the Congress has used its
commerce power to justify many pieces of
legislation that may seem only marginally
related to commerce.
• The Supreme Court of the United States has,
at various points in history, been more or
less sympathetic to the use of the Commerce
Clause to justify congressional legislation
1895-1936
• Interpretation of commerce
power – broad or narrow?
United States v. E.C. Knight
(1895) (CB p. 126)
• Could the Sherman
Antitrust Act suppress
a monopoly in the
manufacture of a good
(sugar) as well as its
distribution?
• Suit by US vs. 5 sugar
manufacturing
companies to prevent a
monopoly resulting
after a stock purchase
merger
United States v. E.C. Knight
(1895) (CB p. 126)
• Justice Melville
Fuller wrote the
majority opinion,
joined by 7 other
justices
• Justice Harlan
dissented
STREAM OF COMMERCE
• In some cases during this 1895-1936
period, the Court was willing to
interpret the Commerce Clause to
permit regulation of local activities, e.g.
Swift & Co. v. United States (1905)
(stream of commerce theory);
Shreveport Rate Cases (1914)
(substantial effects theory),
Swift & Co. v. United States
(1905) (CB p. 129)
• Justice Holmes
delivered the opinion
of the Court
Shreveport Rate Cases (1914)
(CB p. 128)
• Justice Charles
Evans Hughes wrote
the majority opinion
• 2 justices dissented
without opinion
Schechter Poultry Corp. v.
United States, 295 U.S. 495
(1935) (CB p. 135
• Chief Justice
Charles Evans
Hughes wrote the
majority opinion,
joined by 6 other
justices
• Justice Cardozo
wrote a concurring
opinion, joined by
Stone
Carter v. Carter Coal Co., 298
U.S. 238 (1936) (CB p. 137)
• 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
Railroad Retirement Board v. Alton,
295 U.S. 330 (1935) (CB p. 135)
• Justice Roberts (the
first) wrote the
majority opinion
• Chief Justice Hughes
joined by Brandeis,
Stone, and Cardozo,
dissented
Oyez Trivia Question
• Which baseball figure that is most like
Justice Owen Roberts?
• A. Tony Mullane
• B. Bob Shawkey
• C. Charlie Gehringer
Hammer v. Dagenhart (1918) (CB
p. 132)
• Justice Day wrote the
majority opinion
• Powerful dissent by
Justice Holmes
(pictured left) (joined
by McKenna,
Brandeis, and Clarke
Champion v. Ames, 188 U.S. 321
(1903) (CB p. 130)
• 5-4
• Majority opinion
written by Justice
Harlan
• Dissent by Chief
Justice Fuller, joined
by Brewer, Shiras,
and Peckham