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

[Allan Ides]

That is a possibility, but it leads me to ask what you mean by
"commercial."  I'm not trying to be cute about this, but to suggest that
we still need to discover some bottom as to what the Court was trying to
say.  And I don't think that either "economic" or "commercial" address
the Court's underlying concerns.

And I don't think the court's definition of economic activity conflicts
with Posner's definition or anyone elses.  Being empty it conflicts with
nothing.

Allan Ides


Richard Seamon wrote:

> On 14 Nov 02, at 11:39, Richard Dougherty wrote:
>
> > 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.
>
> I think the majority was using "economic" as an alternative to the
> term "commercial" that would imply some restriction on regulatable
> activity without casting doubt too much doubt on precedent.  In this
> sense, the term is used as a rhetorical device in the same sense
> as the articulation of a standard of judicial review is designed to
> evince a mood (to paraphrase Justice Frankfurter).  I don't think the
> Court's use of the term "economic activity" is exposed as a
> "pretense", however, by establishing that it conflicts with a
> Posnerian concept of "economic activity."
> =============================
> Richard H. Seamon
> Associate Professor of Law
> University of South Carolina
> School of Law
> Main and Greene Sts.
> Columbia, S.C. 29208
> phone: 803-777-6963
> fax: 803-777-5827