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

[Richard Seamon]

On 14 Nov 02, at 16:19, Lynne wrote:

> I still don't understand how you can say that
> economic activity is limiting in any way.

It isn't grammatically any more (or less) limiting than the text of the
Commerce Clause itself.  In context, though -- occurring in the first
Supreme Court decision in 50 years to strike down a federal
statute as exceeding Commerce Clause power -- the term
"economic activity" is undoubtedly limiting.  It tells lower courts
and Congress that a majority of the current Court discerns a limit
on Congress's Commerce Clause power that is more stringent than
one might reasonably have inferred from the 50-year track record.
And so lower courts will try to figure out what "economic activity"
means as litigants are emboldened to challenge federal statutes on
commerce-clause grounds.  Sure, there are normative instincts
underlying interpretative efforts, including one premised on the view
that all human activity is economic (or religious).  But that doesn't
mean that the Court shouldn't even bother reviewing Congress's
exercise of its limited powers. (There might be good reasons for the
Court not to bother, but the indeterminacy of the term "economic"
is not one of them.)

Having said that, I hope that, if nothing else, this thread generates
even more interest in Allan Ides' upcoming essay and in Sandy's
current one.  (How is that for generating "commerce" of some sort?)

=============================
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