CONSTITUTIONAL LAW
CLASS 12
February 4, 2008
Limits on Federal Legislative
Powers: The Tenth Amendment
MODERN LAW: 3 THINGS CAN
BE REGULATED UNDER THE
COMMERCE POWER
• 1. Channels of interstate commerce (e.g.
roads, terms/conditions on which goods can
be sold interstate)
• 2. Instrumentalities of interstate commerce
(e.g airlines, railroads, trucking) and
persons/things in intersatet commerce
• 3. any economic activity that has a
substantial relationship with interstate
commerce or substantially affects interstate
commerce (read together with N & P clause)
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.
ERA I: 1824-1890s Gibbons v. Ogden (1824) [C
p. 113]
ERA II: 1890s-1836 Hammer v. Dagenhart (1918)
[C p. 125]
Hammer v. Dagenhart (1918) (CB
• Justice Day wrote the
majority opinion
• 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?
ERA 3: 1937-1990s U.S. v. Darby (1941) [C p.
134]
• Justice Stone
delivered opinion of
the Court
(unanimous)
• Tenth Amendment
“states but a truism
that all is retained
which has not been
surrendered.”
Era 3: National League of Cities
v. Usery (1976) [C p. 145]
• 5-4 Majority opinion
written by Justice
Rehnquist (joined
by Burger, Stewart,
Blackmun, and
Powell)
• Concurring opinion
by Blackmun
• Dissent by Brennan
joined by White and
Marshall
Era 3: Garcia v. San Antonio
Metropolitan Transit Authority
(1985) [C p.148]
• 5-4 overrules Usery
• Justice Blackmun
wrote the majority
opinion, joined by
Brennan, White,
Marshall, and
Stevens
• Powell, Rehnquist,
O’Connor, Burger
dissent
Beginning of Tenth Amendment Era
IV (Revival as a limit): Gregory v.
Ashcroft (1991) [C p. 176-177]
• Sandra Day O’Connor
wrote for the Court
(joined by Rehnquist,
Scalia, Souter, Kennedy,
and as for the judgment,
White and Stevens)
• Blackmun, joined by
Marshall, dissented
• Statutory construction
case
• “Clear statement” rule
New York v. United States (1992)
[C p. 177]
• Justice O’Connor
delivered the opinion
of the Court (joined by
Rehnquist, Kennedy,
Souter, Thomas,
Scalia)
• 6-3 decision
• Dissenters: White,
Blackmun, Stevens
New York v. United States (1992)
[C p. 177]
• Dissent of Justice
White (joined by
Blackmun and
Stevens)
• For which
professional football
team(s) did
“Whizzer” White
play?
Only 3 Current US Low Level
Nuclear Waste Disposal Sites
Printz v. United States (1997) [C
p. 186]
• 5-4 decision
• Scalia wrote
majority opinion
(joined by
Rehnquist,
O’Connor, Kennedy,
Thomas)
• Dissenters: Stevens,
Souter, Ginsburg,
Breyer
Printz v. United States (1997) [C
p. 186]
• Concurring opinion of
Thomas – he questions
whether the Second
Amendment confers an
individual right
• Supreme Court will
consider that issue in a
challenge to DC
handgun regulation,
District of Columbia v.
Heller – oral argument
to be on 3/18/2008
Reno v. Condon (2000) [C p. 195]
• Chief Justice
Rehnquist wrote the
opinion of the Court
• Unanimous decision
• How is this case
different, if at all,
from Printz and New
York?
Reno v. Condon (2000) [C p. 195]
• DPPA Act enacted
after actress
Rebecca Schaeffer
(star of 1980s
sitcom: My Sister
Sam) was killed by a
crazed fan who had
obtained her home
address from the CA
DMV via an AZ
private investigator)