Until the mid 1930s, the courts accepted relatively few things as commerce. But since then, the Supreme Court has greatly expanded the reach of the Commerce Clause and has interpreted commerce to include almost any business activity . Individual states may also pass laws that regulate commercial activities. California might pass a strict regulation that makes it illegal to sell a product in the state that can be legally sold elsewhere in America. State regulations of commerce are typically legal if they do not conflict with any of the doctrines listed below. Federal preemption The Supremacy Clause in the Constitution makes federal law the supreme law of the land. In cases of express preemption, Congress creates a statute and specifically bans states from creating similar laws. The doctrine of implied preemption may also block states from creating valid laws even when Congress does not specifically prohibit such actions.
Congress can also engage in express preemption by specifying in the legislature that the states have no power to adopt similar laws. There’s also implied preemption. Discrimination against interstate commerce If Texas tried to pass a law that made it illegal to sell oil from Texas to buyers in other states, the law would fail for discriminating against interstate commerce. Unduly burdening interstate commerce States also cannot pass laws that create significant roadblocks to interstate commerce. The Internet has opened new frontiers in this area of the law as the Granholm v. Heald case in the reading illustrates. **Commerce clause only concerns economic activity ( US v. Lopez and US v. Morrison ) There are two other constitutional limitations on the discretion of states: (1) full faith and credit clause says that the courts of one state must recognize court judgments and other public actions of its sister states, and (2) contract clause applies to the states but not the federal government and is intended to prevent states from changing the terms of existing contracts by passage of subsequent legislation. 4. Constitutional Liberties In addition to setting up the government, the Constitution guarantees fundamental rights that may not be abridged. Everyone is at least reasonably familiar with the notion that we have a right to free speech and religious worship, a right to be free from unreasonable search and seizure, and a right to an attorney if we are accused of a crime. All of the rights in the Constitution apply when the federal government commits a wrong. Also, many of them apply to states and local governments under the doctrine of incorporation, which uses the phrase due process in the 14th Amendment to stretch the application of many Constitutional liberties beyond the federal government as described in the reading assignment.
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