CONSTITUTIONAL LAW

CLASS 12February 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)