Wickard (Was: Do the Supreme Court's federalism decisionsprotectliberty?)

[Richard Dougherty]

If this is basic Posner (and I'm not disputing that), or if this is Gary
Becker's view (as Mark Graber suggests), they both seem to be
overreaching.  I certainly don't --and don't want to -- think of school or
marriage and family life as an economic activity, and to the extent we do
we are, I think, impoverished.  (And I sure don't want my spouse or kids
thinking of it that way!)  Of course there are economic aspects of both,
but that in itself doesn't seem to settle the case.  To describe either as
fundamentally an economic activity might itself be considered a rhetorical
device, used to justify intervention and regulation.  But if we are
confused about the term "economic activity," then as Mark suggests perhaps
we need a different vocabulary.
Richard Dougherty

Allan Ides wrote:

> Yes.  Marriage is, after all a contract.  And I can tell you from
> experience that raising a family is an economic enterprise.  This is
> basic Posner.
>
> I'm not, however, suggesting that this means that these matters can be
> regulated by Congress under the commerce power, only that the "economic
> activity" distinction is void of substance and serves as nothing more
> than a rhetorical device, i.e., a pretense at drawing a legitimate
> distinction between Lopez/Morrison and previous cases.
>
> Allan Ides