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it allows the state a means of procuring revenue

that could be precluded if goods were considered

exports from the beginning of the process.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—J. David Granger

Cohens v. Virginia 19 U.S. 264 (1821)

In Cohens v. Virginia, the U.S. Supreme Court

upheld the state convictions of two individuals

arrested for selling lottery tickets in deﬁ ance of

Virginia state law. The case had strong national-

istic overtones that angered Virginia, even though

the decision was in its favor.

In an effort to fund the building of the Dis-

trict of Columbia’s infrastructure, Congress

had authorized a national lottery. In response, Vir-

ginia enacted a law banning out-of-state lotteries.

Brothers Philip and Mendes Cohen, who were cit-

izens of Maryland, were arrested and convicted in

the Virginia state court for selling national lottery

tickets in deﬁ ance of state law. The Cohen broth-

ers appealed their conviction to the state supreme

court and then to the U.S. Supreme Court. The

main point of contention was whether the U.S.

Supreme Court had the authority to review the

decision of the Virginia Supreme Court.

Counsel for Virginia argued that the Consti-

tution did not provide for a tribunal to be the

ﬁ nal arbiter of disputes between the states and

the federal government. Counsel further argued

that the Eleventh Amendment’s prohibition

of judicial power over matters between citizens

and other states precluded the Court from assert-

ing jurisdiction between Virginia and the citizens

of another state. Rather, such power would be

found only in the states; therefore, the Court had

no jurisdiction to even entertain the matter, let

alone decide it.

Chief Justice John Marshall wrote for

the unanimous Court, rejecting this claim and,

instead, arguing that Article III of the U.S.

Constitution and Section 25 of the Judiciary

Act of 1789 authorized the Court to review

state criminal proceedings. Marshall argued that

Article III, Section 2 of the Constitution provided

that the judicial power extends to all cases under

the Constitution, including controversies between

states as well as between a state and individuals.

He also argued that Section 25 of the Judiciary Act

provided for review of state supreme court deci-

sions by the U.S. Supreme Court in cases where a

federal law—in this case, the national lottery—or

the Constitution were involved. Marshall’s deci-

sion to uphold the convictions was not based on

the assumption that Virginia’s law was correct.

Rather, it was based on upholding the sanctity of

federal law, in particular the Constitution. Indeed,

according to Marshall, the sanctity of the Union

was dependent on it. Accordingly, the American

people came together as one to form the Union

and a government for the Union. The exercise of

appellate jurisdiction over the decisions of

state courts that violated federal law or the Consti-

tution was essential to the supremacy of the Con-

stitution and the Union. Marshall gave a strongly

worded defense of national power, and, more spe-

ciﬁ cally, judicial power, and made it clear that any

state constitution or state law that was repugnant

to the U.S. Constitution or federal law was “abso-

lutely void.” It was the U.S. Supreme Court, not

the Virginia Supreme Court, that had the ﬁ nal say

over the Constitution.

Although the Court upheld the convictions of

the Cohen brothers, Virginia was angered by the

Court’s assertion of jurisdiction over the decision

of the state supreme court that it considered it to

be void. The Cohens decision was one in a series of

pre–Civil War nationalistic decisions that invoked

outrage from the states.

For more information: Graber, Mark. “The Pas-

sive-Aggressive Virtues: Cohens v. Virginia and

the Problematic Establishment of Judicial Power.”

Constitutional Commentary 12 (1995): 67–92;

Warren, Charles. “Legislative and Judicial Attacks

on the Supreme Court of the United States: A His-

tory of the Twenty-ﬁ fth Section of the Judiciary

Act.” American Law Review 47 (1913): 1–47 and

161–189.

—Randa Issa

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Cohen v. California 403 U.S. 15 (1971)

In Cohen v. California, the U.S. Supreme Court

held that offensive language, including profanity,

is protected First Amendment speech and thus

may not be suppressed under a statute that regu-

lates the manner in which profane words are used.

Paul Robert Cohen was convicted in the Los

Angeles Municipal Court in 1968 for wearing a

jacket that read “Fuck the Draft.” The statute

under which he was convicted was the California

Penal Code Section 415, which prohibited “mali-

ciously and willfully disturbing the peace or quiet

of any neighborhood or person . . . by . . . offensive

conduct.” Cohen stated that he wore the jacket as a

means of informing the public of his feelings against

the Vietnam War and the draft. Although women

and children were present in the hall where Cohen

was observed wearing the jacket, Cohen himself

did not engage in or threaten to engage in, nor did

anyone else as the result of his conduct commit or

threaten to commit, any act of violence. In fact,

Cohen did not utter any sound at all prior to his

arrest, and no one voiced a protest to the jacket.

While the state attempted to influence the

Supreme Court’s decision by arguing that the

members of society in the hall where the jacket

was worn were a “captive audience” forced to view

an “obscene statement,” and as such the state had

a right to ban certain expletives in order to com-

plete its duty as “guardians of public morality,” all

such arguments failed.

In the majority opinion, authored by Justice

John Marshall Harlan and joined by Justices

William O. Douglas, William J. Brennan,

Jr., Potter Stewart, and Thurgood Marshall, Jus-

tice Harlan struck down all three arguments of the

state. He explained that while the First Amend-

ment and Fourteenth Amendment “have

never been thought to give absolute protection to

every individual to speak whenever or wherever

he pleases, or to use any form of address in any

circumstances that he chooses,” none of the non-

protected forms of speech (that is, ﬁ ghting words)

occurred in Cohen’s case regarding the jacket. The

jacket was not obscene as case law deﬁ nes obscene

because the reference to the war and draft were

in no way erotic. Secondly, Harlan argued that no

one present in the corridor could reasonably have

regarded the words on Cohen’s jacket as a “direct

personal insult.” Harlan concluded by explaining

that the group in the corridor were by no means a

captive audience as that term is commonly used,

and anyone viewing the jacket could have simply

averted his or her eyes if the person did not want

to see it.

The Court went through several analogies

for free speech, concluding that the right of free

expression is “powerful medicine,” and as such,

“one man’s vulgarity is another’s lyric.” Justice

Harlan stated emphatically that to allow a statute

such as Section 415 stand would create the risky

situation of allowing the government to potentially

seize upon the “censorship of particular words as

a convenient guise for banning the expression of

unpopular views.” The Court concluded that with-

out a compelling state reason, the state may not

make the simple public display of a speciﬁ c four

letter word a criminal offense.

For more information: Kalven, Harry, Jr. A

Worthy Tradition: Freedom of Speech in Amer-

ica. New York: Harper & Row, 1988; Shiffrin,

Steven. The First Amendment, Democracy, and

Romance. Cambridge, Mass.: Harvard University

Press, 1990.

—Kelli Styron

Coker v. Georgia 433 U.S. 584 (1977)

In Coker v. Georgia, the Supreme Court held

that imposing the death penalty for the rape of

an adult woman was disproportionate and uncon-

stitutional under the Eighth Amendment’s cruel

and unusual punishment clause. As a result of

this decision, no one has been sentenced to death

or executed since 1977 except for crimes involving

death.

Ehrlich Anthony Coker was not a sympathetic

defendant. After escaping from prison while serv-

ing consecutive life sentences, he robbed the

victim’s husband at knife point, raped the 16-

year-old victim, and abducted her in the family’s

car. At trial, the jury convicted him of rape and

recommended a sentence of death based on two

Coker v. Georgia 143

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aggravating factors: Coker had previously been

convicted of a capital felony, and the rape had

been committed in the course of another capital

felony (the armed robbery of the husband).

The Coker case tested the use of the law to

impose a death sentence in a rape case in which

the victim was neither killed nor physically injured

beyond the rape itself. Although the Supreme

Court decided the case by a vote of 7-2, there was

no single majority opinion. Justice Byron White,

writing for a four-member plurality, concluded

that the death penalty was “grossly disproportion-

ate and excessive punishment” for the crime of

raping an adult woman. White stated that although

rape was a serious crime, it did not compare with

murder in terms of moral depravity or injury to

the victim or the public. His comment that rape

“does not include . . . serious injury” prompted

much criticism from feminists and rape victim

supporters at the time.

Justice White first analyzed the “objective”

evidence of public opinion and legislative deci-

sions and concluded that death was becoming

less acceptable as a penalty for rape. While 18

states had authorized the death penalty for rape

in 1925, and 16 of these still had the provision

on the books at the time of the F

URMAN V. GEOR-

GIA decision in 1972, only three had reenacted

that provision after state death penalty laws were

struck down by the Supreme Court. By 1977,

Georgia was the only state to punish the rape of

an adult woman by death. Of those rape cases

tried in Georgia under the new law, juries had

chosen not to impose the death penalty in at least

90 percent of the cases.

Turning from factual data to logical analysis,

Justice White expressed the plurality’s “abiding

conviction” that death was an excessive and there-

fore disproportionate punishment for a rapist who

did not kill, particularly when a deliberate killer

would not receive a capital sentence unless addi-

tional aggravating factors were present.

The dissent, filed by Chief Justice War ren

Earl Burger, which Justice William Hubbs

Rehnquist joined, was longer than the plurality

opinion. It accused the Supreme Court of “sub-

stituting its policy judgment for that of the state

legislature.” The chief justice argued that states

should have the ﬂ exibility to experiment within

the criminal justice system, an argument that had

frequently been made in the 1940s and 1950s but

was becoming less persuasive as the Supreme

Court moved to establish national standards of

due process and criminal procedure.

Chief Justice Burger pointed out that the deci-

sion could have implications for other crimes that

were also punishable by death, a point that is

even more signiﬁ cant today. While states gener-

ally responded to the Coker decision by limiting

the death penalty to homicide cases, Louisiana

extended the death penalty to child rapists in 1995,

and several other states have since followed suit.

Since 1977, the federal government has greatly

expanded the number of crimes for which death

may be imposed; some crimes that do not result

in death, such as running a large-scale drug enter-

prise, are eligible under the 1994 Omnibus Crime

Bill. Although death sentences are still rare at the

federal level, the existence of more than 60 death

penalty crimes creates the potential for conﬂ ict

with the standard of proportionality developed in

Coker. The context for this debate will include an

international community that increasingly rejects

the death penalty as an appropriate penalty for

any crime.

For more information: Fleming, Annaliese

Flynn. “Louisiana’s Newest Capital Crime:

The Death Penalty for Child Rape.” Journal of

Criminal Law and Criminology 89, no. 2 (1999):

717–750; Foster, Burk. “Struck by Lightning: Lou-

isiana’s Electrocutions for Rape in the Forties and

Fifties.” In Death Watch: A Death Penalty Anthol-

ogy. Upper Saddle River, N.J.: Prentice Hall, 2001;

Schaaf, David W. “What If the Victim Is a Child?

Examining the Constitutionality of Louisiana’s

Challenge to Coker v. Georgia.” University of Illi-

nois Law Review 1 (2000): 347–378.

—Barbara J. Hayler

Colegrove v. Green 328 U.S. 549 (1946)

In Colegrove v. Green, the Supreme Court held

that the redistricting cases were not within the

144 Colegrove v. Green

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Court’s jurisdiction. The decision established a

long-standing precedent that, on the grounds of

nonjusticiability, U.S. courts could not enter mat-

ters of legislative districting.

At the time of the case, congressional districts

in Illinois had not been redrawn for more than

four decades, and huge inequities—an eightfold

difference ranging from a low of 112,116 to a high

of 914,053—existed in their sizes. Despite the

variation in populations, each district had but one

representative in Congress. A resident of the big-

gest district sued on the grounds that this ineq-

uity rendered his vote less effective than one in

the smallest district.

In a sharply divided (4-3) decision, the Supreme

Court justices found the issue of legislative dis-

tricting to be beyond the jurisdiction of the Court.

Justice Felix Frankfurter, joined by Justices Stan-

ley Forman Reed and Harold H. Burton, deliv-

ered the opinion. He argued that, according to

Section 4 of Article I of the U.S. Constitu-

tion, “The Times, Places and Manner of holding

Elections for . . . Representatives, shall be pre-

scribed in each State by the Legislature thereof;

but the Congress may at any time by Law make or

alter such Regulations.” According to the Court’s

decision, therefore, the obligation to fairly appor-

tion congressional districts rested squarely with

Congress:

[T]he appellants ask of this Court what is beyond

its competence to grant. This is one of those

demands on judicial power which cannot be

met by verbal fencing about “jurisdiction” . . . it

is hostile to a democratic system to involve the

judiciary in the politics of the people. . . .

[T]he Constitution has conferred upon Con-

gress exclusive authority to secure fair represen-

tation by the States in the popular House, and

left to that House determination whether States

have fulfilled their responsibility. If Congress

failed in exercising its powers, whereby standards

of fairness are offended, the remedy ultimately

lies with the people. . . .

To sustain this action would cut very deep

into the very being of Congress. Courts ought

not to enter this political thicket.

Frankfurter relied on the so-called political

question doctrine, according to which certain

issues are viewed as constitutional issues commit-

ted to some branch of government other than the

judicial branch. As was later shown, the Court was

asking for the impossible, namely, that the urban

residents in underrepresented districts should

expect relief from a legislature or a congressional

delegation that was elected by and ﬁ rmly in the

hands of rural populations in overrepresented dis-

tricts. As it has been observed by scholar Richard

K. Shur,

[i]t was absurd or naive or both to expect mem-

bers of a legislature who had been successfully

elected to ofﬁ ce under one system of districts to

throw that system over in favor of another that

did not provide them with any assurances of

electoral success. Naturally, nothing happened

as a result of Colegrove to correct the growing

malapportionment of state legislative and con-

gressional districts.

Colegrove’s principle of nonjusticiability of

redistricting issues was followed by the courts until

the early 1960s. In G

OMILLION ET AL. V. LIGHTFOOT,

AYOR OF TUSKEGEE, ET AL., 364 U.S. 339 (1960),

the Supreme Court admitted for the ﬁ rst time that

the redistricting plan can be a tool for discrimina-

tion on the basis of race. B

AKER V. CARR, 369 U.S.

186 (1962), and R

EYNOLDS V. SIMS, 377 U.S. 533

(1964), ﬁ nally overruled Colegrove and developed

the “one person, one vote” rule.

For more information: Scher, Richard K., et al.

Voting Rights and Democracy: The Law and Poli-

tics of Districting. Chicago: Nelson-Hall Publish-

ers, 1997.

—Jurij Toplak

Collector v. Day 78 Wall. 113 (1871)

In Collector v. Day, the Supreme Court ruled 8-1

that the Tenth Amendment bars the U.S. govern-

ment from taxing income of state workers. This

was one of the ﬁ rst Supreme Court cases involving

the constitutionality of the federal income tax, and

Collector v. Day 145

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it fostered the principle of intergovernmental

tax immunity, that the national government

must not tax state government workers and the

state government cannot tax federal workers.

The decision in Collector was eventually

reversed in 1939. Congress established the ﬁ rst

income tax in 1862 to help defray the enormous

debt incurred by the Civil War. Americans paid

taxes on the amount of income they derived from

wages, salaries, property, interest, dividends, and

other sources. For example, a person earning

between $600 and $10,000 annually was taxed at a

rate of 3 percent. To ensure compliance, Congress

also created the Commission of Internal Revenue,

the forerunner of the modern Internal Revenue

Service (IRS). Congress modiﬁ ed the law and the

rates several times over the following decade. In

1871, the tax was set at 5 percent on all yearly

income over $1,000.

J. M. Day was a Massachusetts probate court

judge, and his salary was set by law and paid from

the state treasury. A federal tax collector assessed

Day’s income and set his tax at $61.50. Judge Day

paid the tax and then sued the collector to recover

the amount paid. The suit averred that the U.S.

government had no constitutional authority to tax

income derived from state governments. The cir-

cuit court ruled for Day, and the federal govern-

ment asked the U.S. Supreme Court to review the

case on a writ of error.

Supreme Court justice Samuel Nelson, afﬁ rm-

ing the lower court ruling, delivered the majority

opinion. He noted that while Congress has author-

ity under Section 8 of Article I of the U.S.

Constitution to lay and collect uniform taxes

to pay the public debts, it is nevertheless restricted

by the reserved powers of the Tenth Amendment.

Under the Tenth Amendment, states may possess

all powers that are neither given to the national

government nor prohibited to the states under

the Constitution. Citing Chief Justice John Mar-

shall’s famous quotation in M

CCULLOCH V. MARY-

LAND (1819), “the power to tax involves the power

to destroy,” Nelson reasoned that state judges are

instruments of the state governments, and if the

national government could place an income tax

on the states, it had the potential for destroying

the very state powers permitted under the reserve

powers of the Tenth Amendment. Nelson con-

cluded that state governments and their agents are

not the proper subjects of federal taxation. Joining

in the opinion were Justices Robert Grier, Nathan

Clifford, Noah Swayne, Samuel F. Miller, David

Davis, Stephen Field, and Chief Justice Salmon P.

Chase. The lone dissent, offered by Justice Joseph

Bradley, asserted: “No man ceases to be a citizen

of the United States by being an ofﬁ cer under the

State government.”

The decision in Collector was eventually over-

turned in Graves v. New York ex rel. O’Keefe (1939).

In Graves, the Supreme Court ruled 6-2 that the

state tax on the income of a federal employee did

not place an undue burden upon the federal gov-

ernment. Today, the federal government may tax

income of state workers, and the state governments

may tax the income of federal workers.

For more information: Brownlee, W. Elliot.

Federal Taxation in America. New York: Cam-

bridge University Press, 1996; Fairman, Charles.

Reconstruction and Reunion, 1864–1868. New

York: Macmillan, 1971; Witte, John F. The Poli-

tics and Development of the Federal Income Tax.

Madison: University of Wisconsin Press, 1985.

—Richard J. Hardy

commander in chief

The title of commander in chief refers to the pow-

ers of the president found in Section 1 of Article

II of the U.S. Constitution. One of the major

constitutional issues is determining what pow-

ers the president has as commander in chief and

how they compare to the authority of Congress in

the area in foreign affairs and national defense.

Determining the lines of authority between the

president and Congress has been a historical point

of controversy, especially since the Vietnam War

and more recently with President George W. Bush

and the “war on terrorism.”

When the framers wrote the Constitution in

1787, they textually committed certain powers

both to the president and Congress in the areas of

foreign policy and national defense. Section 8 of

146 commander in chief

xviii+446_EofUSConsti-v1.indd 146 3/12/09 3:04:23 PM

Article I of the U.S. Constitution includes

the power to declare war, organize an army and

navy, and regulate the armed forces, among

other powers. Conversely, Article II declares the

president to be commander in chief of the armed

forces, and this section also gives the president

and Senate joint powers in approving treaties

and nominating ambassadors. Thus, in some

cases, the Constitution textually commits some

powers to Congress, the president, or jointly.

Historically, the division of power between the

legislative and executive branches has been to

treat the president as commander in chief as the

person responsible for taking emergency action,

such as deploying troops if the United States

is attacked or to commit troops for a variety of

short-term missions. Throughout U.S. history,

there are numerous examples of this. The real

question, though, that has emerged is where do

the powers of Congress end in the area of mili-

tary and foreign affairs, and where do the powers

of the president pick up?

In U

NITED STATES V. CURTISS-WRIGHT EXPORT

ORP., 299 U.S. 304 (1936), the Supreme Court

suggested that presidents potentially have more

power to depart from the normal constitutional

arrangements in foreign affairs as opposed to

domestic matters. However, one effort to clarify

the lines of constitutional authority between the

president and Congress was made in Y

OUNGSTOWN

HEET & TUBE V. SAWYER, 343 U.S. 579 (1952). In

that case, President Harry S. Truman stepped in

via executive order and had the steel mills of the

nation seized in order to avert a strike during the

Korean War. The Supreme Court overturned the

seizure. Justice Robert Jackson’s concurrence in

the case suggested that the president’s, or com-

mander in chief’s, authority is limited in scope,

and he cannot act on his own without the con-

sent of Congress on most matters that offer other

methods for recourse. Jackson described three

categories of presidential power: 1) “When the

President acts pursuant to an express or implied

authorization of Congress, his authority is at

its maximum”; 2) “When the President acts in

absence of either a congressional grant or denial

of authority, he can only rely upon his own inde-

pendent powers, but there is a zone of twilight

in which he and Congress may have concurrent

authority, or in which its distribution is uncer-

tain”; and 3) “When the President takes measures

incompatible with the expressed or implied will

of Congress, his power is at its lowest ebb, for

then he can rely only upon his own constitutional

powers minus any constitutional powers of Con-

gress over the matter.”

Jackson’s concurrence has become the touch-

stone for understanding the president’s power

as commander in chief. It suggests that there is

some inherent executive authority to act in for-

eign and military affairs, yet that line was not

deﬁ ned in that case. It was further blurred during

the Vietnam War when Presidents Lyndon John-

son and Richard Nixon deployed hundreds of

thousands of troops without a formal declaration

of war by Congress. They instead relied upon the

Gulf of Tonkin Resolution, which was adopted by

Congress on August 7, 1964, in response to an

alleged attack on the United States by North Viet-

nam. The resolution stated: “Congress approves

and supports the determination of the President,

as commander in chief, to take all necessary

measures to repel any armed attack against the

forces of the United States and to prevent further

aggression.”

In 1973, Congress sought to address the gap

between the lines of authority of Congress to make

war versus the president’s power as commander in

chief by adopting the War Powers Act. This act

provides for limited presidential engagement of

troops for up to 60 days, and it also mandates that

the president must consult with Congress when

possible before deploying troops. Congress, by

joint resolution, could also require the president

to bring the troops home sooner. However, the act

has thus far been invoked by the president only

once—in 1975 when Gerald Ford sent troops in to

rescue members of the Mayaguez who had been

captured by Cambodia—and the constitutionality

of it is in question since it relies on a legislative

veto. In INS v. Chada, 462 U.S. 919 (1983), the

Supreme Court declared unconstitutional a one-

house legislative veto, leaving open whether even

a two-house veto would be upheld.

commander in chief 147

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The terrorist attacks of September 11, 2001,

on the United States have yet again raised ques-

tions about what powers the president has as

commander in chief. Similar to what happened

in Vietnam, Congress authorized the president

to respond to the attacks with the authorization

to use military force (AUMF) on September 14,

2001: “to use all necessary and appropriate force

against those nations, organizations, or persons he

determines planned, authorized, committed or

aided the terrorist attacks that occurred on Sep-

tember 11, 2001, . . . in order to prevent any future

acts of international terrorism against the United

States by such nations, organizations, or persons.”

As a result of AUMF, President Bush has invoked

it, as well as claims of inherent executive authority

as commander in chief, to undertake a variety of

actions including electronic surveillance of over-

seas communications without warrants issued by

the courts and the detaining of suspected ter-

rorists without arraignments. In a series of cases

including H

AMDI V. RUMSFELD, 542 U.S. 507 (2004),

RASUL V. BUSH, 545 U.S. 466 (2004), RUMSFELD V.

PADILLA, 542 U.S. 426 (2004), and Hamdan v.

Rumsfeld, 126 S.Ct. 2749 (2006), the Supreme

Court has not ruled on the inherent powers of the

president as commander in chief, and it has gen-

erally followed the dicta of Justice Jackson from

Youngstown in describing whether Bush was given

congressional authority to undertake the activities

at issue in these cases.

Overall, the power of the president as com-

mander in chief is significant in his being the

civilian head of the military, but the Constitution

remains silent on how much authority is vested in

that ofﬁ ce.

For more information: Adler, David Gray, and

Robert George, eds. The Constitution and the

Conduct of American Foreign Policy. Lawrence:

University Press of Kansas, 1996; Henkin, Louis.

Constitutionalism, Democracy, and Foreign

Affairs. New York: Columbia University Press,

1990; Henkin, Louis. Foreign Affairs and the

United States Constitution. Oxford and New York:

Clarendon Press, 1996.

—Ernest Gomez and David Schultz

commerce clause

The commerce clause is one of the most impor-

tant clauses in the entire Constitution in terms of

granting powers to Congress. Throughout Ameri-

can history, various interpretations have been at

the center of many disputes between the power of

the national versus state governments.

The commerce clause, which appears in Sec-

tion 8 of Article I of the U.S. Constitution,

is quite brief: “The Congress shall have Power . . .

To regulate Commerce with foreign Nations, and

among the several States, and with the Indian

Tribes.” Despite its brevity, the commerce clause

has been an important source of authority for

Congress. The legislative branch has used this

clause to regulate both commercial and noncom-

mercial activities, though the Supreme Court

has not always approved of all usages to which

Congress has attempted to put this authority. In

determining the permissible scope of congressio-

nal power under the clause, the Court has dealt

primarily with interstate commerce, but its

explicit language also gives Congress prerogatives

with regard to foreign commerce and commerce

concerning Native American tribes.

The impetus for including the commerce

clause in the Constitution was the economic tur-

moil that prevailed under the Articles of Con-

federation. Prior to the ratification of the

Constitution, the central government had vir-

tually no effective tools at its disposal to regulate

the economic conditions of the nation. Individual

states, however, were largely unconstrained in

the pursuit of their own independent economic

policies, even if those policies were harmful to

the national economy. Among the most harmful

were trade barriers intended to protect businesses

native to particular states, barriers that interfered

with interstate trade. The commerce clause ﬁ rmly

removed such power from the states and lodged it

in the new federal government.

As the Court made clear in the 1824 case of

IBBONS V. OGDEN, 22 U.S. 1, congressional com-

merce clause authority is not strictly limited to

commerce in the sense of buying and selling goods.

Rather, it includes such things as navigation and

anything else related to commercial intercourse.

148 commerce clause

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In this seminal case, the Court also distinguished

between interstate commerce and intrastate com-

merce, with the latter falling outside the purview

of Congress. Though it asserted that commerce

commencing within the conﬁ nes of one state may

nonetheless be part of interstate commerce if it is

part of a larger transaction that ends in another

state, the Court subsequently struggled with

determining exactly when something intrastate

rose to the occasion of being interstate in nature

and thereby fell within the purview of Congress.

One distinction the Court originally relied

on to make this determination was that between

the manufacture of goods within a state and the

subsequent transportation of such goods across

state lines. For example, in U

NITED STATES V. E. C.

KNIGHT CO., 156 U.S. 1 (1895), the Court declined

to ﬁ nd that the commerce clause gave Congress

the authority to take steps to bar monopolistic

control over sugar reﬁ ning. In adjudicating this

case, the Court said that while the manufacture of

a good did give the manufacturer inﬂ uence on the

good’s later disposition (including possible disposi-

tion in interstate commerce), manufacturing is not

the same as commerce and such incidental effects

on interstate commerce did not bring manufactur-

ing within the reach of Congress under the com-

merce clause.

The Court held similarly in H

AMMER V. DAGEN-

HART, 247 U.S. 251 (1918), when it found Congress

had exceeded its authority under the commerce

clause when it attempted to regulate child

labor. The challenged legislation prohibited the

interstate shipment of goods made by children

under the age of 14. It further prohibited the

shipment of such goods across state lines if they

were manufactured using children 14 to 16 years

of age who worked more than eight hours a day.

In rendering its decision, the Court expressed the

view that permitting Congress to regulate local

manufacturing conditions, even when what is

manufactured ends up shipped interstate, would

artiﬁ cially enhance commerce clause authority at

the expense of traditional state authority reserved

to the states under the Tenth Amendment.

The Court developed a much more liberal

understanding of congressional commerce clause

authority through its stream of commerce doctrine.

First articulated in S

WIFT & CO. V. UNITED STATES,

196 U.S. 375 (1905), the stream of commerce

doctrine was fully developed in the 1922 case of

Stafford v. Wallace, 258 U.S. 495. Both of these

cases dealt with challenges to the federal regula-

tion of stockyards, which served as important con-

duits for the movement of livestock from farm to

consumer. When a group of meatpacking compa-

nies joined forces to control stockyard prices, the

federal government sought to break the alleged

monopoly through the use of, ﬁ rst, the Sherman

Antitrust Act of 1890 and, second, the Packers and

Stockyards Act of 1921. In upholding these laws,

the Court characterized the stockyards as “but a

throat through which the current [of commerce]

ﬂ ows, and the transactions which occur therein

[such as those between and among the ranchers,

brokers, and meatpacking companies] are only

incident to this current.” In other words, though

any given stockyard is located within the conﬁ nes

of a particular state, it is not the endpoint of the

commercial transaction. Instead, the stockyards

are part of a stream of commerce that is interstate

in character and, accordingly, is properly within

the authority of Congress to regulate under the

commerce clause.

Through the early years of the New Deal, the

Court reined in congressional authority under the

commerce clause, striking down a wide range of

legislation intended to address the dreadful eco-

nomic conditions left in the wake of the Great

Depression. For example, the Court struck down

key provisions of the National Industrial Recovery

Act (NIRA) as exceeding the conﬁ nes of the com-

merce clause in S

CHECHTER POULTRY CORPORATION

V. UNITED STATES, 295 U.S. 495 (1935). At issue

were codes intended to regulate working condi-

tions and provide for sanitary slaughtering condi-

tions in New York’s chicken market. The Schechter

Poultry Corporation did purchase large quantities

of chickens from out of state through poultry deal-

ers, but, according to the Court, that was an insuf-

ﬁ cient connection to interstate commerce to bring

to bear congressional authority under the com-

merce clause. The Court found similarly in C

ARTER

V. CARTER COAL COMPANY, 298 U.S. 238 (1936), a

commerce clause 149

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case challenging the regulation of working condi-

tions and labor relations in the coal industry under

the Bituminous Coal Conservation Act, the suc-

cessor to the NIRA’s coal codes.

Angered by what he saw as the Court’s dogged

determination to stymie the New Deal, President

Franklin D. Roosevelt ﬂ oated a plan to increase

the size of the Court by one member for each

member then serving who was 70 years of age

or older. Ostensibly this proposal was intended

to aid an overworked Court, but it was seen as a

clear attempt on the part of Roosevelt to engineer

a Court more conducive to his policies. Though

Roosevelt was unsuccessful in securing legisla-

tive backing for his Court-packing plan, subse-

quent Court rulings were much more favorable

to New Deal legislation enacted under the aus-

pices of the commerce clause. For example, the

Court upheld the National Labor Relations Act,

which safeguarded collective bargaining rights

for those working in the manufacture of prod-

ucts for interstate commerce, in N

ATIONAL LABOR

ELATIONS BOARD V. JONES AND LAUGHLIN STEEL

ORP., 301 U.S. 1 (1937). Further, the Court

upheld minimum-wage laws for those engaged in

the manufacture of goods destined for interstate

commerce in U

NITED STATES V. DARBY LUMBER

CO., 312 U.S. 100 (1941), overruling Hammer v.

Dagenhart in the process. And, the Court upheld

regulations imposing farm production limits that

included not only products intended for inter-

state commerce but also those intended for home

consumption in W

ICKARD V. FILBURN, 317 U.S. 111

(1942).

Later, Congress sought to capitalize on the

more expansive view of congressional power

under the commerce clause represented by these

cases from the end of the New Deal to address

diverse social ills. For example, federal regulations

requiring desegregation passed under the aus-

pices of the commerce clause were applied to a

small, privately owned recreational club in rural

Arkansas in the case of Daniel v. Paul, 395 U.S.

298 (1969). The Court validated that applica-

tion in part because a juke box and the records it

played were manufactured out of state, and many

of the snack bar items were made with ingredi-

ents that came from outside Arkansas. In H

EART

OF ATLANTA MOTEL V. UNITED STATES, 379 U.S. 241

(1964), the Court similarly upheld congressional

action under the commerce clause to prohibit

public accommodations from discriminating on

the basis of race using the Civil Rights Act

of 1964. More recently, however, the Court has

invalidated congressional attempts to rely on the

commerce clause to prohibit guns in school zones

NITED STATES V. LOPEZ, 514 U.S. 549 [1995]) and

to make the federal courts available for civil rem-

edies for crimes involving violence against women

(UNITED STATES V. MORRISON, 529 U.S. 598 [2000]).

In both of these decisions, the Court emphasized

the requirement that there be more than an inci-

dental connection to interstate commerce for an

activity to be within the reach of congressional

authority.

Throughout the Court’s history of interpreting

the commerce clause, alternatively enhancing and

diminishing the scope of congressional authority,

the Court has frequently had to balance congres-

sional commerce clause authority against state

powers. The Court’s initial guidance on this point

came in C

OOLEY V. BOARD OF WARDENS OF THE PORT

OF PHILADELPHIA, 53 U.S. 299 (1852). The Board

of Wardens, created by the state to regulate usage

of the port of Philadelphia, required the use of

local pilots to enter and leave the port. The owner

of two ships challenged this arrangement, argu-

ing that the state, through the Board of Wardens,

was impermissibly interfering with interstate

commerce by requiring the use of local pilots.

In crafting its resolution of this case, the Court

developed the doctrine of selective exclusiveness

to govern state actions touching on interstate

commerce. Under this doctrine, if national uni-

formity is necessary, then Congress has exclusive

authority to regulate such commerce. If, however,

the commerce in question is local in nature then

the states may engage in regulation, though states

may not burden interstate commerce in doing so.

In short, while the commerce clause is a positive

and explicit grant of authority to Congress, it is

simultaneously a restriction on the authority of the

states. The states may not burden interstate com-

merce in the regulation of intrastate commerce.

150 commerce clause

xviii+446_EofUSConsti-v1.indd 150 3/12/09 3:04:24 PM

This principle is often referred to as the negative,

or dormant, commerce clause.

In addition to granting Congress authority over

interstate and foreign commerce, the commerce

clause explicitly gives Congress authority over for-

eign commerce and commerce with Native Amer-

ican tribes. Early in the nation’s history, Congress

invoked its authority to regulate commerce with

Native American tribes under the commerce

clause, primarily to control trade between Indi-

ans and non-Indians. Later, Congress attempted

to use the commerce clause to legislate regard-

ing criminal activity on Indian reservations in

the Major Crimes Act of 1885. Though the Court

declined to invalidate the Major Crimes Act,

it rejected the idea that the commerce clause

granted Congress the authority to regulate the

adjudication of internal criminal matters on res-

ervations in United States v. Kagama, 118 U.S.

375 (1886). More recently, however, Congress has

relied on the commerce clause as a broad grant

of authority for regulating the Indian Nations.

For example, Congress invoked, in part, the

commerce clause as its authority for passing the

Indian Child Welfare Act.

For more information: Cooke, Frederick H.

The Commerce Clause of the Federal Consti-

tution. Littleton, Colo.: F. B. Rothman, 1987;

Frankfurter, Felix. The Commerce Clause under

Marshall, Taney and Waite. New York: Quad-

rangle Books, 1964; Vermeule, Adrian. “Three

Commerce Clauses? No Problem.” Arkansas Law

Review 55 (2003): 1,175–1,183.

—Wendy L. Martinek

commercial speech

Commercial speech refers to forms of communi-

cation that often include product or service adver-

tising. This type of speech, while historically not

protected by the First Amendment, has been

given more constitutional protection in the last 30

years.

Advertising became a part of the national media

during the colonial period; however, the exten-

sion of First Amendment protection to advertising

and commercial speech took many years. Com-

mercial speech is still a controversial and conten-

tious area, with many Supreme Court decisions

weaving between full protection and very limited

protection.

In the early part of the 20th century, the

Court did not allow any protection for commer-

cial speech. In Valentine v. Chrestensen, 316 U.S.

52 (1942), a unanimous Court ruled that “purely

commercial advertising” did not enjoy protection

by the First Amendment. By the 1950s and 1960s,

several courts began to chip away at the Valen-

tine decision. In Bigelow v. Virginia, 421 U.S. 809

(1975), a case that involved the interstate adver-

tising of abortion services, the Supreme Court

ruled that while commercial speech did not war-

rant full First Amendment protection, truthful

advertising conveying facts and information “of

potential interest and value” did merit signiﬁ cant

protection. The following year, in V

IRGINIA STATE

OARD OF PHARMACY V. VIRGINIA CITIZENS CONSUMER

COUNCIL, 425 U.S. 748 (1976), the Court ruled that

state and federal agencies could police false and

misleading advertising but expanded protection

of advertising prescription drug prices. The Court

ruled that prices were important information for

consumers to have.

Attorney advertising has always been

controversial and was forbidden by most state bar

associations until Bates v. State Bar of Arizona,

433 U.S. 350 (1977). That decision permitted

attorney advertising as long is it was not deceptive

or illegal and did not contain “misstatements . . .

quite inappropriate in legal advertising.” Numer-

ous cases since then have strengthened the claims

of First Amendment protection for legal adver-

tising, although the Court upheld a Florida state

regulation that prohibited lawyers from contact-

ing hurricane victims for 30 days (Florida Bar v.

Went for It, Inc. 515 U.S. 618 (1995).

In 1980, the Supreme Court established a test

for commercial speech in the case Central Hudson

Gas and Electric v. Public Service Commission,

447 U.S. 557. The Central Hudson test consists of

four parts: 1) The message must be truthful, 2) the

government interest in constraining the message

must be legitimate or substantial, 3) the regulation

commercial speech 151

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