Citizens United v. Federal Election Commission (FEC)

Citizens United v. Federal Election Commission (FEC) (2010)

Compelling Question

Should there be limits on spending in campaigns and elections? And how does this affect your life?

Campaign Spending Limits
Campaign Spending Limits
There should be limits on how much money individuals can spend on elections.


Oyez: Citizens United v. Federal Election Commission

Bipartisan Campaign Reform Act of 2002

VOX - 50 Charts that explain money in politics

Related Cases:

Buckley v. Valeo

McCutcheon v. Federal Election Commission

McConnell v. Federal Election Commission



Facts of the case

Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president.

In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Section 203 of the BCRA prevents corporations or labor unions from funding such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to such communication and a disclaimer when the communication is not authorized by the candidate it intends to support.

Citizens United argued that: 1) Section 203 violates the First Amendment on its face and when applied to The Movie and its related advertisements, and that 2) Sections 201 and 203 are also unconstitutional as applied to the circumstances.

The United States District Court denied the injunction. Section 203 on its face was not unconstitutional because the Supreme Court in McConnell v. FEC had already reached that determination. The District Court also held that The Movie was the functional equivalent of express advocacy, as it attempted to inform voters that Senator Clinton was unfit for office, and thus Section 203 was not unconstitutionally applied. Lastly, it held that Sections 201 and 203 were not unconstitutional as applied to the The Movie or its advertisements. The court reasoned that the McConnell decision recognized that disclosure of donors "might be unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause," but those circumstances did not exist in Citizen United's claim.


1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional?

2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"?

3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA?

4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?


5–4 decision for Federal Election Commission
majority opinion by Anthony M. Kennedy

The BCRA’s restrictions on advertisements regarding Citizens United’s film "Hillary" do not violate the First Amendment.

5–4 decision for Citizens United
majority opinion by Anthony M. Kennedy

The First Amendment protects the right to free speech, despite the speaker’s corporate identity.

No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.

In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized the care with which the Court handles constitutional issues and its attempts to avoid constitutional issues when at all possible. Here, the Court had no narrower grounds upon which to rule, except to handle the First Amendment issues embodied within the case. Justice Scalia also wrote a separate concurring opinion, joined by Justices Alito and Thomas in part, criticizing Justice Stevens' understanding of the Framer's view towards corporations. Justice Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations' ability to spend money during local and national elections.

Engel v. Vitale



Is teacher-led prayer allowed in public school classrooms?

The Big Question

Should teacher-led prayer be allowed in public school classrooms?

The Big Survey

Take our School Prayer Survey!


As you learn about Engel v. Vitale fill in this Landmark Court Cases Matrix.


Take our May They Do that? quiz and learn the limits of the separation between church and state.


Learn about the Freedom Of/From Religion Clauses. And tonight only, it's learn one/get one free!

Read a little background on the case. And watch this fantabulous video about Freedom of Religion.

Check out the facts of the case.

Facts of the case

The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country."

And think about how you would answer the question before the court.


Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment?

Listen to audio recordings of oral arguments from Engel v. Vitale.

Read the court ruling from Engel v. Vitale


6–1 decision for Engel

Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans.

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Complete our class starter on Freedom of/from Religion in American schools, and be prepared to share your answers in class.


Think about how the Engel v. Vitale ruling impacted American schools and participate in our freedom of/from religion cases scavenger hunt!


Here are some important Supreme Court cases related to Engel v. Vitale and the Establishment Clause of the First Amendment.

Everson v. Board of Education, 330 U.S. 1 (1947)
Providing bus rides to parochial school students is constitutional.
The School Board of Iwing Township allowed its buses to transport children to a Catholic school. The Supreme Court rejected an Establishment Clause challenge to this practice, and held that the School Board was merely providing a financial benefit to the children and their parents, and was in no way promoting religious beliefs that are associated with the parochial school.

Abington School District v. Schempp, 374 U.S. 203 (1963) 
School-sponsored Bible reading before class is unconstitutional. 
A Pennsylvania law required that each school day open with the Pledge of Allegiance and a reading from the Bible. The law permitted students to absent themselves from this activity if they found it objectionable. Citing Engel, the Court held that school-sponsored Bible reading constituted government endorsement of a particular religion, and thus violated the Establishment Clause of the First Amendment.

Westside Community Schools v. Mergers, 496 U.S. 226 (1990)
Public schools may not prohibit student religious groups from meeting on school grounds after hours.
Westside School District prevented a student religious club from meeting on its property after hours, citing First Amendment concerns. The club argued that the school's action violated their Free Exercise rights and the federal Equal Access Act. The Equal Access Act was passed by Congress to ensure that any school receiving federal funds could not prevent religious and other groups from using school property after hours. The Supreme Court upheld the Equal Access Act against an Establishment Clause challenge, saying that "neutrality" and no "hostility" to religion is all that is required by the First Amendment.

Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)
Students may not use a school's loudspeaker system to offer student-led, student-initiated prayer.
Before football games, members of the student body of a Texas high school elected one of their classmates to address the players and spectators. These addresses were conducted over the school's loudspeakers and usually involved a prayer. Attendance at these events was voluntary. Three students sued the school arguing that the prayers violated the Establishment Clause of the First Amendment. A majority of the Court rejected the school's argument that since the prayer was student initiated and student led, as opposed to officially sponsored by the school, it did not violate the First Amendment. The Court held that this action was school-sponsored prayer because the loudspeakers that the students used for their invocations were owned by the school.

Zelma v. Simmons Harris, 536 U.S. 639 (2002)
Certain school voucher programs are constitutional.
The Ohio Pilot Scholarship Program allowed certain Ohio families to receive tuition aid from the state. This would help offset the cost of tuition at private, including parochial (religiously affiliated) schools. The Supreme Court rejected First Amendment challenges to the program and stated that such aid does not violate the Establishment Clause.

Pro and Consider

Here are some arguments and counterarguments for school prayer.

Here is an extensive list of pros and cons of prayer in school.

Expert Opinions

Here are some expert opinions on prayer in school.


7 Reasons We Need Prayer Back in Schools by Genice Phillips on Beliefnet.


The truth about school prayer by Charles Haynes, director of the Religious Freedom Education Project at the Newseum.

Public Opinion

Here's what Americans think about all this.

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Complete this Prayer in School Team Questionnaire and Discussion.


Hey, teacher - this would be a great time to have a freedom of/from religion fishbowl!!!


Write an argumentative essay about freedom of religion/freedom from religion.


Make something creative out of the case of Engel v. Vitale. Here are your instructions.


Rewrite the First Amendment (above) as you would like to see it in 2017 America. Edit the First Amendment by cutting, pasting, adding, subtracting, or completely rewriting it. Post your final revision on a poster or paper that you post in a public place or online. Share your post and its responses in class or online.


Your opinion again. Now that you've learned about and acted on this issue, share your opinion. Retake our School Prayer Survey!

Exit Interview

  1. How did your opinion change?

  2. In what way did your opinion not change?

  3. What do you know now that you didn't know before?

  4. In the Comment section below, share your final opinion on School Prayer.


McCulloch v. Maryland

McCulloch v. Maryland (1819)

McCulloch v. Maryland (1819)

Compelling Question

Does the federal government have too much power?

Create your survey with SurveyMonkey

Facts of the Case

After the War of 1812, (when was that?) the U.S. government needed additional funds to pay off the debts of the war. At the time, there was no central US national bank, so instead of being able to borrow money from one institution, the government had to work with multiple state banks. How inefficient! As a result, in 1816, Congress set up the Second Bank of the United States with branch offices in multiple locations and convenient horse and buggy drive through service. Many states opposed the National Bank because the state banks then had to compete for business. In response, Maryland passed a law requiring the national bank to pay a heavy tax to the state of Maryland. James McCulloch, the bank's bad-to-the-bone cashier, refused to pay the tax!

McCulloch was convicted of failing to pay the tax and was fined $2,500. He appealed the case to the Maryland Court of Appeals, which upheld the decision of the lower court and affirmed McCulloch's conviction. The dispute reached the Supreme Court of the United States.

The Court Considered These Constitutional Questions:

  • Did Congress have the power to establish a national bank?

  • Did the Maryland law to tax the nationally chartered bank unconstitutionally interfere with federal powers?

  • Do we look fat in these robes?

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
— John Marshall

Fun Facts

  • When the Maryland courts upheld this law, the Bank, in the name of its Baltimore branch cashier James W. McCulloch, appealed to the Supreme Court. Who said bank tellers couldn't be famous!?!

  • Daniel Webster, with William Pinkney, argued the case on behalf of the Bank. Luther Martin argued the case on behalf of Maryland. 

  • The First Bank of the United States was chartered by Congress for 20 years on February 25, 1791.  The concept of the bank was the brainchild of Alexander Hamilton, the first Secretary of the Treasury and a visionary for the great future of America. 

  • John Marshall was the chief justice presiding over a landmark case - again!

  • There were seven Supreme Court Justices when the case was decided. The ruling was unanimous, but Justice Thomas Todd did not take part in the ruling. On March 29, 1812, Todd had married Lucy Payne Washington, the youngest sister of Dolley Madison and the widow of Major George Steptoe Washington, who was a nephew of President George Washington. It is believed to be the first wedding held in the White House.

  • Supreme Court Justices do look fat in their robes.


Oyez - McCulloch v Maryland

Crash Course Video - Federalism

National Archives Primary Source - McCulloch v Maryland ruling

Relevant Excerpts of the Constitution:

  • The Necessary and Proper Clause (Article I, Section 8, Clause 18)

    "The Congress shall have the Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested in this Constitution."

    The Necessary and Proper Clause is also known as the "Elastic Clause" because its meaning may be stretched to allow Congress to pass a variety of laws.

  • The Supremacy Clause (Article VI, Clause 2)

    "This Constitution, and the Laws of the United States which shall be made in pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

    This part of the Constitution specifically states that federal laws take priority over state laws.

  • The Tenth Amendment

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people."

Main Arguments for McCulloch:

  • Although the power to charter a national bank is not specifically mentioned in the Constitution, it is one of the implied powers that the Necessary and Proper Clause grants Congress.

  • The bank is a "necessary and proper" way for Congress to conduct the financial affairs of the country.

  • If Maryland is allowed to tax the bank, the state could destroy the bank by taxing it so much that it would have to close.

Main Arguments for Maryland:

  • The right of the national government to establish a bank is not specifically granted in the Constitution.

  • It is also not an implied power, so Congress had no right to establish a national bank.

  • The power to establish banks is reserved for the states.

  • States are sovereign (they have complete and permanent authority over themselves), so they have the authority to tax institutions and businesses in their borders.

Main Arguments for Pizza:

  • Easy to divide evenly.

  • Tastes great.

  • Can eat with hands!

  • Can be used as a Frisbee in an emergency.

  • Everybody loves pizza.


The Court's Decision:

The Court unanimously ruled in favor of the national government's right to establish the bank and also found that the state did not have the power to tax the institution.

Chief Justice Marshall, writing for the Court, stated that the federal government possessed powers that were not explicitly expressed in the Constitution, known as implied powers. Although the federal government did not specifically have the power to charter a national bank, the national Congress did have the authority to make all laws "necessary and proper" to accomplish other tasks.

Marshall also held that even though the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme ... they control the constitution and laws of the respective states, and cannot be controlled by them." Maryland did not have the ability to tax a federal establishment. Taxing the national bank was really an attempt by the state to destroy the bank, and this was a challenge to the federal government's constitutional supremacy.

The Court did not rule on pizza, as it had not been invented yet.

For your Consideration

Imagine life without The Necessary and Proper Clause, where the federal government is limited to only enumerated powers listed in Article I, Section 8 of the US Constitution. Think about how different the government and American life would be.

Imagine life without The Supremacy Clause, where much like America under the Articles of Confederation, the federal government is no longer superior to the states. Think about how different the government and American life would be.

  1. When there is a conflict between state and federal government, who wins and why?

  2. Is the growth of the federal government which McCulloch v Maryland made possible a good thing?

  3. If you were John Marshall how would you have ruled in McCulloch v Maryland?

  4. How would the U.S. political system be different without McCulloch v Maryland?

Creative Time

Do one of the following to share:

  1. Create a facebook page for either James McCulloch or John Marshall.

  2. Replace the words of a popular rap or song with facts, data, details, and information from McCulloch v Maryland. For example: Hey Jude = Hey Judge

Hey Judge, don't make it bad
Take a bad clause and make it better
Remember to let it into your heart
Then you can start to make it better

Hey Judge, don't be afraid
You were made to make government bigger
The minute you let national government win
Then you begin to make it better

And anytime your court constrains, hey Jude, refrain
Don't limit the gov upon your shoulders
For well you know that it's a fool who plays it cool
By making his gov a little bolder
Nah nah nah nah nah nah nah nah nah

Hey Judge, don't let the elastic clause down
You have founded a bank, now go and get her
Remember to let the Second National Bank into your heart
Then you can start to make it better

So let national supremacy in, hey Jude, begin
You're waiting for some states to perform with
And don't you know that it's just you, hey Judge, you'll rule
The power you need is in your majority opinion
Nah nah nah nah nah nah nah nah nah yeah

Hey Judge, don't make it bad
Take the words of the framers and make it better
Remember to let James McCulloch win win win
Then you'll begin to make our country
Better better better better better better, oh

Nah nah nah nah nah nah, nah nah nah, hey Judge
National Supremacy nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge
Nah nah nah nah nah nah, nah nah nah, hey Judge

-Not Lennon and McCartney


Use all the sources above to fill in the Landmark Court Cases Rubric Below:

Civic Action

Throughout American history there has been a battle between those who fear anarchy and those who fear tyranny. These battles have been fought by Anti-Federalists, and Federalists, Decentralists and Centralists, Republicans and Democrats; and have been fought at the Constitutional Convention, in the Supreme Court, and at the ballot box. And today this fight continues regarding the government's power in the war on terror, state marijuana laws, and immigration enforcement. In terms of this long fought war, think about the trajectory that our country took because of the ruling in McCulloch v Maryland. Would we be better off with a federal government limited to the enumerated powers of the US Constitution; would we be better off with a more robust and powerful federal government; or do we have this balance just right? Contact your member of the U.S. House of Representatives and share your opinion of this fight regarding a current event.

Compelling Question Revisited

Does the federal government have too much power?

How elastic is the Necessary and Proper clause; who wins in a bar fight between the states and the national government; and how does this affect your amazing life?

Marbury v. Madison

Marbury v. Madison (1803)

Compelling Question

What would our lives and political system be like without a Supreme Court with the power of judicial review?

Facts of the Case

At the end of President John Adams’ term, his Secretary of State failed to deliver documents commissioning William Marbury as Justice of the Peace in the District of Columbia.  Once President Thomas Jefferson was sworn in, in order to keep members of the opposing political party from taking office, he told James Madison, his Secretary of State, to not deliver the documents to Marbury.  Marbury then sued James Madison asking the Supreme Court to issue a writ requiring him to deliver the documents necessary to officially make Marbury Justice of the Peace. The Marbury v. Madison decision resulted in establishment of the concept of judicial review.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
— Chief Justice John Marshall

Fun Facts

On February 10, 1803, Marbury's attorneys argued the case. Neither Madison nor an attorney representing him was in court. Madison had never even acknowledged the order to show cause.

Shortly after the argument, Justice Samuel Chase became quite ill. To accommodate him in the winter weather, the Supreme Court began to hear arguments where the justices all lodged, Stelle's Hotel. On February 24, 1803, the justices gathered for four hours, while Chief Justice read the landmark Marbury decision. The case that made the U.S. Supreme Court one of the most powerful courts in the world was announced in the living room of a three-story hotel!


Oyez - Marbury v. Madison

Crash Course Video - Judicial Review

More Perfect Podcast - Kittens Kick the Giggly Blue Robot - Warning: explicit language

National Archives Primary Source - Marbury v Madison ruling

For your Consideration

Imagine life without a Supreme Court. Think about how different U.S. Checks & Balances sheet would be it there was no judicial review.

Judicial Review - The power of a court to refuse to enforce a law or a government regulation that in the opinion of the judges conflicts with the Constitution.

The Supreme Court is the keeper of the constitutional conscience. The Supreme Court alone, not the legislative or the Executive branch, gets to interpret the Constitution. Woodrow Wilson said that the Supreme Court was a “Constitutional Convention always in session.”

John Marshall said that judges- not executives or legislators- get to interpret laws. “If two laws conflict with each other, the courts should interpret the Constitution.”

But the Constitution itself does not give the judicial branch the power of judicial review. Court power has evolved since the ratification of the Constitution. And some would argue that John Marshall created the power of judicial review out of thin air! Here are some questions to consider:

  1. Is the judiciary, congress or the executive entitled to interpret the constitutionality of laws and executive actions?
  2. Is the judicial review that stems from Marbury v Madison a good thing?
  3. If you were John Marshall how would you have ruled in Marbury v Madison?
  4. How would the U.S. political system be different without Marbury v Madison?

Creative Time

Do one of the following to share:

  1. Summarize Marbury v Madison in a 140 character tweet with any hashtags you think are appropriate.
  2. Find an emoji or group of emojis to represent Marbury v Madison.


Use all the sources above to fill in the Landmark Court Cases Rubric Below:

Civic Action

Because the Supreme Court is an un-elected body, some people think that judicial review is undemocratic. Others think that it is wise to have an independent Constitutional check on the legislature and executive branch. One solution to this dilemma would be to hold elections for Supreme Court Justices. Contact your member of the U.S. House of Representatives and share your opinion of this solution.


United States v. Lopez

Compelling Question

Are there limits to the power of the Commerce clause and thus the regulatory power of Congress? And if so, how does this affect you?

Take Part in our survey
Take Part in our survey
The US Congress should be able to pass a law forbidding individuals from carrying guns in a school zone

Facts of the case

Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release.


Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?


Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.


Fun Facts

  • After a half century of the expansion of federal power, the SCOTUS set a limit on Congress' use of the Commerce Clause.
  • 38% of all statistics are made up on the spot.
  • 18 states allow an adult to carry a loaded gun on school grounds.
  • More than a third of the states already allow teachers and other adults to carry guns to school. In most cases, all you need is the equivalent of a note from the principal — you usually don't even need law enforcement approval.
  • Individual packs, which contain one 1.59-ounce serving, contain 30 to 35 candies. M&M's candies are also sold in bulk bags. A 5-pound bag contains approximately 2500 candies, while a 10-pound bag contains approximately 5000 pieces.
  • Here are the 18 states that allow adults to carry loaded weapons onto school grounds with few or minor conditions:
  • Alabama (which bans possessing a weapon on school grounds only if the carrier has "intent to do bodily harm")
  • California (with approval of the superintendent)
  • Connecticut (with approval of "school officials")
  • Hawaii (no specific law)
  • Idaho (with school trustees' approval)
  • Iowa (with "authorization")
  • Kentucky (with school board approval)
  • Massachusetts (with approval of the school board or principal)
  • Mississippi (with school board approval)
  • Montana (with school trustees' permission)
  • New Hampshire (ban applies only to pupils, not adults)
  • New Jersey (with approval from the school's "governing officer")
  • New York (with the school's approval)
  • Oregon (with school board approval)
  • Rhode Island (with a state concealed weapons permit)
  • Texas (with the school's permission)
  • Utah (with approval of the "responsible school administrator")
  • Wyoming (as long as it's not concealed)


  • U.S. v. Lopez at Oyez
  • Listen to the Oral Arguments and the Opinion Announcement
To uphold the Government’s contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.
— Chief Justice William Rehnquist


Use all the sources above to fill in the Landmark Court Cases Rubric Below:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
— The Commerce Clause in its entirety

For your consideration

Education, although far more than a matter of economics, has long been inextricably intertwined with the Nation’s economy…. guns in the hands of six percent of inner-city high school students and gun-related violence throughout a city’s schools must threaten the trade and commerce that those schools support.
— Justice Stephen Bryer
  1. Do you believe, like Justice Beyer (see above quote), that the Gun Free School Zone Act of 1990 is constitutional under the Commerce Clause?
  2. What are some things the Commerce Clause has been used to regulate?
  3. What is one consequence of the fact that this case limits, for the first time in a half century, the power of the Congress to use the Commerce Clause?
  4. Read these two different interpretations of the Commerce Clause and explain which one you agree with more.
  5. Do you agree with the Supreme Court's majority ruling in U.S. v. Lopez?

Creative time

  • Some would say that the Commerce Clause has been the most powerful weapon in the expansion of the power of the Congress. If you had to list all the weapons in Congress' arsenal, what would you rank as the top five?
  • Imagine that you wanted a judicial conservative to have to uphold the constitutionality of Gun Free School Zone Act of 1990. Rewrite the Commerce Clause so that it has the power for a judicial conservative to allow Gun Free School Zone Act of 1990.
  • Here are the words of the Commerce Clause, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" Now write a rap, rhyme, song, or limerick about the Commerce Clause.
  • Write your own opinion for the case of U.S. v. Lopez

Civic Action

Contact your US House Representative. Ask them to initiate a constitutional amendment to rewrite the Commerce Clause so that it is either more expansive or more restrictive in the powers it gives Congress. 

Compelling Question Revisited

Are there limits to the power of the Commerce clause and thus the regulatory power of Congress? And if so, how does this affect you?