Nahmod Law

Teaching the Commerce Clause presents challenges and opportunities. What follows are some of them.

Challenges: The Long and Winding Road

What confronts students immediately are the complicated history and changing doctrines of the Commerce Clause in the Supreme Court. One starts off with Gibbons v. Ogden, the seminal decision in this area, in which John Marshall set out a very broad reading of the commerce power: first, it is defined generously as that commerce that concerns more states than one and, second, it is declared plenary in nature. An important assumption underlying Gibbons was that it is the political process that enforces federalism. After that, however, in the late 19th and early 20th centuries, the Court increasingly began to enforce federalism on its own, on the formalist assumption that there are areas of local concern (such as manufacturing, production, the employment relationship and the like) that are immune from commerce power regulation.

Then came the middle 1930′s, during which the Court switched gears dramatically and adopted what might be called a realist approach to the commerce power. Under this approach, the Court looked at what was actually going on in the economy. The Jones & Laughlin, Wickard and Heart of Atlanta/McClung cases are excellent examples of cases in which the Court upheld the regulation of intrastate activities on the ground that those activities had a significant effect on interstate commerce. In a very real sense, there was a return to Gibbons. Read the rest of this entry »