This course will highlight the construction and interpretation of the U.S. Constitution through the centuries. You'll learn the history behind the Constitution, cases that formed important precedent, and how changes in interpretation have been dependent on shifts in cultural and political climate as well as the composition of the Supreme Court. We'll start with an overview of the Constitution where we'll consider questions such as "Why the Constitution?" and "What function does the Constitution serve?" Next we'll examine how the Constitution and its subsequent interpretation established the powers of the federal, legislative, and judicial branches of government and allocated powers to the states. Join me as we look at the questions both raised and answered by the Constitution and those that interpret it! By the end of this course, you should be able to: - Describe how the structure of the United States government has been shaped by both the text of the Constitution and by subsequent interpretation and practice of political actors in all branches of government - Illustrate compromises found in the Constitution by citing examples and historic background - Articulate the importance of key cases such as Marbury v. Madison, McCullough v. Maryland, and Lochner v. New York - Explain how the outcome of cases is often dependent upon the current cultural and political climate as well as the composition of the court by citing particular cases and important shifts in the court's jurisprudence - Assess the relative suitability of various approaches to constitutional interpretation and analysis
The Commerce Clause - Part 1
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Do curso por University of California, Irvine
Chemerinsky on Constitutional Law - The Structure of Government
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University of California, Irvine
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Lecture 3 - The Federal Legislative Power
In this module we will consider three major questions: 1.How did McCullough vs. Maryland shape the power of the legislature? 2. What are the major powers of the Congress under the Constitution? 3. To what extent do states limit the power of the Congress?
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Erwin ChemerinskyDean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law
School of Law
[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.
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