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

[Allan Ides]

If you extort money from someone by threat of violence is that a form
of economic/commercial activity?  Perez, which either Lopez or Morrison
cites approvingly, would seem to establish this.  Using your concept of
barter, I think it follows that extorting sex from someone by threat of
violence is also a form of economic/commercial activity.  Just because
most people don't think of it in this way doesn't establish that it
isn't.

I agree with you that the Court was trying to find a way to say that
there are internal limits to the Commerce Power.  I just don't think
the majority came close to explaining what those limits are or ought to
be.

Allan Ides


----- Original Message -----
From: Richard Seamon <seamon at LAW.LAW.SC.EDU>
Date: 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
>