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I've got a pretty good grasp on most stuff in con law, but there's a fundamental piece I'm not understanding, which is how Congress legislates in an area that isn't founded on the Commerce Clause. For example, the Partial Birth Abortion Act. What allows Congress to regulate this area? I ask because it seems like a lot of legislation, for example the Civil Rights Act, only works because it satisfies commerce. How does the PBAA become law? Or if you had (as we had in a practice exam) a federal act that gave grandparents visitation rights. Where would this come from?

Thanks for any help.

You saw the shitstorm that ensued when someone tried to get help with their take-home con law exam, right? Anyway, your problem, not mine.

The stuff you reference comes from substantive due process, which the Court reads into the 14th amendment due process clause. Protects stuff like individual liberty, privacy, etc. Section 5 of the 14th gives congress the authority to enact legislation protecting those rights.

TatteredDignity wrote:You saw the shitstorm that ensued when someone tried to get help with their take-home con law exam, right? Anyway, your problem, not mine.

The stuff you reference comes from substantive due process, which the Court reads into the 14th amendment due process clause. Protects stuff like individual liberty, privacy, etc. Section 5 of the 14th gives congress the authority to enact legislation protecting those rights.

It is true that Congress can enact legislation under Amd. 14, § 5, but the PBAA is not one of those statutes. It's expressly enacted under the Commerce Clause power. The reason Congress can do that is presumably because no medical provider is able to conduct business without participating in interstate commerce in some form. The Due Process clause was, however, the relevant constitutional provision in Gonzales v. Carhart, where the Supreme Court held that the PBAA did not impose an "undue burden" on women's DP right, as established by Roe and Casey, to terminate a pregnancy.

Lincoln wrote:

TatteredDignity wrote:You saw the shitstorm that ensued when someone tried to get help with their take-home con law exam, right? Anyway, your problem, not mine.

The stuff you reference comes from substantive due process, which the Court reads into the 14th amendment due process clause. Protects stuff like individual liberty, privacy, etc. Section 5 of the 14th gives congress the authority to enact legislation protecting those rights.

It is true that Congress can enact legislation under Amd. 14, § 5, but the PBAA is not one of those statutes. It's expressly enacted under the Commerce Clause power. The reason Congress can do that is presumably because no medical provider is able to conduct business without participating in interstate commerce in some form. The Due Process clause was, however, the relevant constitutional provision in Gonzales v. Carhart, where the Supreme Court held that the PBAA did not impose an "undue burden" on women's DP right, as established by Roe and Casey, to terminate a pregnancy.

Right, it doesn't seem like substantive due process would allow the PBAA because the law is not remedying some historic violation of a woman's right to an abortion.

For the record, I did see the shit storm, and we don't have take-homes in my section.

Lincoln wrote:

TatteredDignity wrote:You saw the shitstorm that ensued when someone tried to get help with their take-home con law exam, right? Anyway, your problem, not mine.

The stuff you reference comes from substantive due process, which the Court reads into the 14th amendment due process clause. Protects stuff like individual liberty, privacy, etc. Section 5 of the 14th gives congress the authority to enact legislation protecting those rights.

It is true that Congress can enact legislation under Amd. 14, § 5, but the PBAA is not one of those statutes. It's expressly enacted under the Commerce Clause power. The reason Congress can do that is presumably because no medical provider is able to conduct business without participating in interstate commerce in some form. The Due Process clause was, however, the relevant constitutional provision in Gonzales v. Carhart, where the Supreme Court held that the PBAA did not impose an "undue burden" on women's DP right, as established by Roe and Casey, to terminate a pregnancy.

While you're right about the PBAA, I think the concept of visitation rights from his practice test would be premised on the due process clause.

But it seems like even that would be based on a mistaken premise, since grandparents have no liberty interest (or any other recognized constitutional right) for visitation. So wouldn't Congress there be essentially trying to define a new right, which is prohibited?

arvcondor wrote:I've got a pretty good grasp on most stuff in con law, but there's a fundamental piece I'm not understanding, which is how Congress legislates in an area that isn't founded on the Commerce Clause. For example, the Partial Birth Abortion Act. What allows Congress to regulate this area? I ask because it seems like a lot of legislation, for example the Civil Rights Act, only works because it satisfies commerce. How does the PBAA become law? Or if you had (as we had in a practice exam) a federal act that gave grandparents visitation rights. Where would this come from?

Thanks for any help.

The Partial Birth Abortion Act requires interstate commerce, so it is regulating interstate commerce. Just like Congress can regulate something like gun ownership only by throwing in that the gun traveled in interstate commerce.

arvcondor wrote:But it seems like even that would be based on a mistaken premise, since grandparents have no liberty interest (or any other recognized constitutional right) for visitation. So wouldn't Congress there be essentially trying to define a new right, which is prohibited?

Yeah, they technically can't create a new right, but the Court can do it for them if they say it already existed. Roe v. Wade basically did this by saying that the right to privacy, which arguably isn't even in there, extends to a woman's choice of what to do with her body.

TatteredDignity wrote:

arvcondor wrote:But it seems like even that would be based on a mistaken premise, since grandparents have no liberty interest (or any other recognized constitutional right) for visitation. So wouldn't Congress there be essentially trying to define a new right, which is prohibited?

Yeah, they technically can't create a new right, but the Court can do it for them if they say it already existed. Roe v. Wade basically did this by saying that the right to privacy, which arguably isn't even in there, extends to a woman's choice of what to do with her body.

I'm just thinking as far as the grandparents' rights things go, since there doesn't seem to be any recognized right in that area.

arvcondor wrote:

TatteredDignity wrote:

arvcondor wrote:But it seems like even that would be based on a mistaken premise, since grandparents have no liberty interest (or any other recognized constitutional right) for visitation. So wouldn't Congress there be essentially trying to define a new right, which is prohibited?

Yeah, they technically can't create a new right, but the Court can do it for them if they say it already existed. Roe v. Wade basically did this by saying that the right to privacy, which arguably isn't even in there, extends to a woman's choice of what to do with her body.

I'm just thinking as far as the grandparents' rights things go, since there doesn't seem to be any recognized right in that area.

It's not unprecedented, it just hasn't extended that far yet. You can't keep someone from seeing his kids if he's divorced, etc. There is a general recognition of certain rights dealing with family.

Okay, so for example, what about national parks/historic sites? Is that also based on commerce?

I imagine that would be the Property Clause of Article IV.