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

[Richard Seamon]

On 14 Nov 02, at 15:05, Allan Ides wrote:

> 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.

I think the Court's underlying concern was to say emphatically (but
imprecisely) that there are limits on Congress's Commerce Clause
power but those limits are not so severe as suggested in Thomas's
opinion and his definition of "commercial."

As to "economic" activity, I agree with Professor Cross's
assessment of what the Court probably had in mind, except that I
think the Court (and the public) would also include self-conscious
barter in their transactional conception.  Professor Cross said:

> [W]hen the public (and the courts) use the
> term economic, they are generally referring to
> economic transactions, where money changes hands,
> though not always voluntary transactions, I think.
>  It is this sense of economic that animates the
> commerce clause decisions.

By "self-conscious barter,"  I mean to exclude interactions in which
the average person doesn't regard him- or herself as predominantly
engaged in an attempted wealth-maximizing exchange: e.g., the
exchange of wedding vows.

Maybe the Court/public concept of "economic activity" is "logically
indefensible" one, whether the term corresponds to Professor
Cross's description or mine.  In any event, I tend to believe that the
Court thought the term had a logically defensible content and that
the content sweeps in more activities than would the term
"commercial."  For example, even if the production or manufacture
of goods doesn't fall within some folks' (e.g., Thomas's) concept of
"commercial" activity, it falls within just about everyone's concept
of "economic" activity.

Having said that, I also think that it is perfectly possible to
understand "commerce" (in the sense of social intercourse) to be
essentially synonymous with "economic activity," especially if all
human interaction is ultimately economic.  I am not trying to be
cute, either.  I'm saying that the Court really was using the term
"economic" in a rhetorical way, and for that very reason the term is
not an empty one.
=============================
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