1. CONSTITUTIONAL LAW CLASS 7 January 23, 2007 The Commerce Clause I History of Interpretation Up to 1995

2. INTERPRETATION: IMPORTANCE Tushnet: “only method practically available in US constitutional law to deal with change and its consequences for the constitutional code.”

3. 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....“

4. GIBBONS v. OGDEN (1824) (CB p. 124)

5. 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

6. 1895-1936 Interpretation of commerce power – broad or narrow?

7. 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

8. 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

9. 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),

10. Swift & Co. v. United States (1905) (CB p. 129) Justice Holmes delivered the opinion of the Court

11. Shreveport Rate Cases (1914) (CB p. 128) Justice Charles Evans Hughes wrote the majority opinion 2 justices dissented without opinion

12. 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

13. 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

14. 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

15. Oyez Trivia Question Which baseball figure that is most like Justice Owen Roberts? A. Tony Mullane B. Bob Shawkey C. Charlie Gehringer

16. 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

17. 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