[SOUND] In Discussing the federal legislative power, I said that I wanted to focus on three questions. First, how does MuCullough versus Maryland define Federalism? The second that I want to focus on is what are Congress' powers under the Constitution. Article One Section Eight is the primary place where Congress's powers are enumerated, though additional powers were added in the amendments passed after the Civil War that I'm going to be talking about, the 13th, 14th, and 15th Amendments. If you have a copy of the Constitution, it's worth looking at Article One, Section Eight in reading through the list of congressional powers, it is all talk about it's worth looking at, section two of the 13th amendment. Section fuve of the 14th amendment. Section twi of the 15th amendment. All of which list additional powers of congress. I'm going to be reviewing all of this, and addressing this question. What are the powers of congress? Now I want to focus on the powers that have been used to adopt the vast majority, the overwhelming number of federal statutes throughout American history, and I especially want to focus on three of these powers. I want to talk about Congress' power to regulate commerce among the states, Congress' power to tax and spend, and Congress' power what I've referred to already as the post-Civil War Amendments, the 13th, 14th, and 15th amendments. Now, these aren't all of Congress' powers. The Constitution for example gives Congress the power to create an army and a navy and to raise the army and the navy. It gives the Congress the power to create uniform rules for bankruptcy. It gives Congress the power to create roads and post offices. Gives congress the authority to regulate intellectual property through copyrights and patents. And these are certainly important powers, but the three that I want to focus on account for the overwhelming majority of federal laws adopted by congress through American history. So I want to start first in discussing Congress's authority to regulate commerce among the states. This is found in Article One section Eight, which is that Congress can regulate commerce with foreign nations, with Indian tribes and among the several states. So much in the way of federal legislation over the course of American history has been adopted by Congress under its Commerce clause authority. For example, all federal environmental laws we're adopted by Congress under it's Commerce clause of power. Whether we're talking about the Clean Air Act or the Clean Water Act or the Super Fund Statute, or toxic waste dumping. All of that was adopted by Congress under it's Commerce clause of power. All regulation of food and drugs. Like the Food and Drug Administration was adopted by Congress through its Commerce clause power. So much in terms the way Congress regulates the economy. Anti-trust laws, the Federal Trade Commission were adopted by Congress under its Commerce clause authority. The regulation of broadcasting, like the federal communication commission which was adapted by Congress through its Commerce clause power. What's interesting though is that over the course of American history the supreme court has not been consistent in how it defines the scope of Congress' commerce clause power. In fact, the Supreme Court has shifted between two very different views when it comes to Congress' commerce clause power. One perspective I would call the nationalist perspective. The nationalist perspective has broadly defined the scope of Congress' commerce power. Its rejected the idea that there's any zone or activities that's left just to the states. The other perspective I would call the federalist perspective on this. The federalist view says the Congress' commerce power has to be narrowly circumscribed, that should be interpreted in a limited way so as to leave most governance to this states. The Federalist perspective says that the Constitution is meant to create a national government of limited powers. The Commerce clause must be restricted on this basis, and the Federalist perspective says there should be a zone of activities left to the states. Like a pendulum, the Supreme Court has swung back and forth between these two perspectives. In the early part of the late 19th century, the Supreme Court took the nationalist perspective. Not once from 1787, when the Constitution was ratified to the 1890s, was any federal law declared unconstitutional as exceeding the scope of Congress' commerce power were infringing a zone of activities left to the states. Then from the 1890s to 1936, the Supreme Court adopted the federalist view the court repeatedly declared federal laws unconstitutional, as exceeding the scope of Congress' commerce power, and infringing the zone of activities that were left at the states. Then from 1937 to the 1990s, the pendulum swung in the opposite direction The court embraced the nationalist viewpoint in a whole hearted way. The court from 1937 to 1995 did not declare one federal law unconstitutional as exceeding the scope of congress' commerce clause power. Only once from 1937, and 1992 was a federal law struck down on the grounds that it infringed state sovereignty, in that case was over ruled nine years later. But then in the 1990's the court shifted again to the federalist prospective. Striking down some major federal laws is exceeding the scope of Congress's power and infringing a zone of activities left to the states. I want to review all of this history. It's the only way really for you to understand the scope of Congress's Commerrce power. But there is an underlying quest for you to think about as I review this material. Is it desirable or undesirable to so broadly define Congress' power? On the one hand, those who take the nationalist perspective say that it is very desirable to give Congress broad power. They say that we're an incredibly complex economy and society. Congress needs to have the tools to be able to deal with the problems of the early 21st century. Congress' Commerce Clause authority should be expansively interpreted. And those who take this perspective, reject the idea that there's any reason to limit this to protect the states' estates. But those who adopt the Federalist perspective say as I've already mentioned, Congress is supposed to have limited powers. If the Congress power is interpreted in an unlimited way, it's inconsistent with the basic constitutional principle. They say most governance should be left to the state level. Therefore, Congress's authority needs to be restricted, and there should be a zone of activities that's left to the states. It's interesting that over the course of American history, political perspective, ideology is so corresponded to these views. It has been, today and through much of American history, liberals who have embraced the broader view of congress' power, the nationalist prospective. And it's conservatives who have really embraced the Federalist perspective, the limited one. You need to decide which do you agree with. But let me talk now about the court shifted. They said like a pendulum between these two perspectives of Congress' power. From the time the constitution was ratified in 1787 until the 1890s the court very much adopted the nationalist perspective. They said during this time period not one federal law was struck down as exceeding the scope of Congress' powers, or infringing state sovereignty. The key case during this time was Gibbons versu Ogden. Again, like with Marbury versus Madison and McCullough versus Maryland, an opinion written by John Marshall. What was involved here is that New York granted a monopoly In running steam ships to certain individuals, they've been assigned the rights by Robert Fulton who invented the steam ship. And somebody else who had a license from Congress to run steam ships, brought a challenge to the New York monopoly that kept him from operating in New York waters, and the question was did Congress have the authority to issue licenses to steamships? Of course this is something that's not mentioned in the Constitution. The question is, does it fit within the scope of Congress' Commerce Clause power? Remember that John Marshall was very much at the time it was called a Federalist. Not in the way that I'm using the word Federalist a moment ago, but one who believed in a strong national government. He was part of the same party as George Washington and John Adams. So, he used Gibbons versus Ogden, just like he used McCullogh versus Maryland, to broadly define the scope of congress' commerce clause authority. Marshall focused, on three questions. First, what does commerce mean? Now, the challenger to the federal licensing of steamships said, Commerce should be thought of as just one phase of business. Commerce should be thought of as buying and selling of commodities. It shouldn't be thought of navigation which is what was involved with this case. But the Supreme Court and John Marshall's opinion rejected that. John Marshall said commerce is meant to refer to all stages of business. It is not just buying and selling but it is everything. It is mining, manufacturing, production, navigation. All of that should fit within the scope of congress' commerce policy. Second, the court had to address the question, what does among the states mean? After all this was about running a steam ship in the interstate waters of New York. Can Congress regulate something that's wholly interstate? And again, the Supreme Court and John Marshall's opinion, ruled in favor of Congress. The court said, "among the states" means affecting more than one state. So as long as Congress can show that what it's regulating in one state, affects those in other states. Congress should be able to regulate, under article one, section eight of the constitution. Now, the court could've taken, a much more limited view, of what's among the states. Could've said it's just that which is going between state governments. But the court said, so long as what's going on in one state, affects those in other states, then that's good enough. Of course, what doesn't affect those in other states? Could Congress pass a law that limits the amount of time that an individual spends in the shower saying that what a person does in terms of the amount of water used affects those in other states? Doesn't everything effect those in other states? And third, the court had to answer the question, is there a zone of activities that's left just to the state governments? And John Marshall says no. John Marshall says, when Congress is regulating commerce among the states It gets the act the same as if there were no state governments, Congress' power is in John Marshall's word, is plenary. It is the authority to regulate even as if there were no state governments. Notice what John Marshall does here. He broadly defines commerce as all stages of business. It's not just about buying and selling. He says that among the states means that Congress can regulate anything that affects more than one state. And when Congress has the power to do this, Congress can act the same as if there were no state governments. And from Gibbons versus Ogden early in the 19th century until nearly the very end of the 19th century, this perspective, the nationalist viewpoint, controls. But all of this changes, changes, changes dramatically, changes ominously in the 1890s when the court shifts to this second Federalist perspective.
