Commerce Clause Article 1 8

1
Commerce Clause (Article 1 8) Is there Federal
(Congressional) Action?
There is no Commerce Clause Issue if there is
no Congressional Action
No
Yes
Is there any rational basis for Congress to
construe this as a regulation of the channels of
interstate commerce?
No
Yes
Is there any rational basis for Congress to
construe this as a regulation of an
instrumentality of interstate commerce?
Congress does have the POWER to regulate these
things
No
Yes
BUT Remember US v. Lopez (1995) struck down
under Congresss power under the Commerce
Clause. Activities must be commercial or have an
obvious connection to commerce.
Is there a substantial relationship between the
thing that is being regulated and interstate
commerce?
No
Yes
UNCONSTITUTIONAL
Congress still can not COMANDEER Congress can not
violate DUE PROCESS Congress can not violate
EQUAL PROTECTION
2
Substantive Due Process Can the government do
this? Is this a liberty interest?
Is there state action that prohibits someones
liberty interest?
No 14th A claim under Sub. Due Process
NO
YES
Is this a Fundamental Right?

• Voting
• Travel (Saenz)
• Privacy
• sex
• marriage
• child-bearing
• Freedom of Contract (Lochner)

Wealth Mental Retardation
YES
NO
STRICT SCRUTINY
RATIONAL BASIS
Is there a compelling state interest?
Is there a legitimate state interest?
YES
NO
YES
NO
Is the means narrowly tailored? Is the means
necessary?
Is the means Rationally Related?
YES
NO
Griswold Eisenstadt Roe v. Wade Webster Casey
State almost always wins
YES
CONSTITUTIONAL
LOCHNER
CONSTITUTIONAL
UNCONSTITUTIONAL
UNCONSTITUTIONAL