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

[Lynne]

I still don't understand how you can say that economic activity is limiting
in any way. And the Court is certainy relying awfuly heavily on "rhetoric"
in *Lopez* and *Morrison* in asserting that it is  a limit to Congress's
power.  As Justice Kennedy did here in a lecture to my class in September,
he believes the Court (majority) now has a workable, indeed determinate,
standard for determining the extent of the commerce clause--namely,
"economic activity" (as contrasted with "direct/indirect"--though see the
"too attenuated" language in *Morrison*--manufacturing vs. commerce, etc).
On Richard Seamon's view, it seems "economic activity"  appears to be left
entirely up to one's "intuitions" about what is economic and what is not,
and those depend on normative stances that will fluctuate with the
interpreter.  You don't have to be Gary Becker or RIchard Posner to label
marriage and family "economic activity".   For example, marriage at the time
of the founding and even to some degree today *is* understood in economic
terms, even if not right at the moment one takes one's vows,  and as Tobias
Wolff noted much earlier, Jill Hasday has persuasively demonstrated the
amount of  federal regulation of marriage there is.
sincerely
Lynne
Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Box 451003
Las Vegas, NV  89154
702-895-2625
----- Original Message -----
From: "Richard Seamon" <seamon at LAW.LAW.SC.EDU>
To: <CONLAWPROF at listserv.ucla.edu>
Sent: Thursday, November 14, 2002 3:53 PM
Subject: Re: Wickard (Was: Do the Supreme Court's
federalismdecisionsprotectliberty?)


> 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