US v. Morrison -- question

[Bob Sheridan]

I don't know whether others contributing to this list envision matters 
in this fashion, or how useful it is, but I'd like to posit two axes of 
moment in conlaw.

The first axis is the question of the limits to an idea. Prof. Laycock 
describes in the post below that the idea of economic activity as the 
basis of the delegated commerce power can be stretched so far that the 
beginning meaning has feathered off so that it is powerless to exclude. 
As I recall, the problem in Gibbon v. Ogden was whether the definition 
of commerce as understood in 1787, meaning trading goods, could be 
stretched to include transit of passengers on the novel steamboat. 
Stretched further in the example posited below, picking up after oneself 
at home is conceivably an economic activity as now understood, but not 
in 1787 in all likelihood.

So where does a good idea end? Where are the limits to a good idea that 
make it ridiculous? This is the stuff of comedians and conlawprofs, 
pointing out the ironies, a high art in either field, altho' not quite 
as humorous in ours. The limit is a matter of human judgment, relegated 
to lawyers, judges, and supreme court justices, as well as the felt 
needs of the times, i.e. the people and what they will accept. Where one 
idea comes to an end, another rises to fill the void.

The second axis, as illustrated by the discussion across the country and 
as reflected on this list on the subject of nominations to the Court, is 
the question of individual choice as to where the limits of an idea 
exist. This refers to personal and political attitudes as reflected in 
judicial philosophies: Frankfurter's restraint, Black's absolutism, 
Douglas's liberalism, Rehnquist's new states rights, Scalia's 
textualism, Thomas's originalism, etc. All trying to be wise, learned, 
thoughtful, honest, pragmatic, what-have-you, but coming out all over 
the lot.

No doubt the law professor's job is to note the centrality of an idea 
and its limits, the various individual philosophies at play and in 
opposition.

We seem so often to trod the ragged edges of the ideas and the people 
who espouse them, at what photographers call the 'circle of confusion,' 
the point when examining a black and white silver nitrate image that you 
no longer see the image but the grains. To see the image, then, you have 
to back away and view from a distance to regain the focus.

rs

Douglas Laycock wrote:

> The trial lawyers carefully set up the facts in /Raich/; there was no 
> exchange. Plaintiffs grew their own in their homes; the more disabled 
> plaintiffs had friends do it for them, for free. The government's 
> theory was that there was production, which is economic, and which 
> substituted for a commerical exchange.
> True enough, but equally true of all household production. Cooking 
> dinner is production, and it substitutes for going out to a 
> restaurant. Picking up the mess in your bedroom produces a service of 
> economic value, and it substitutes for hiring a cleaning service. On 
> the government's theory, the market transaction for which the 
> household production substitutes does not have to be a legal 
> transaction, so more intimate bedroom activities may also substitute 
> for a commercial transaction.
> This does not overrule the exclusion of "noneconomic activities" in 
> /Lopez/ and /Morrison/, but it announces a very expansive conception 
> of what counts as economic.
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341 (phone)
> 512-471-6988 (fax)
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Don Crowley
> *Sent:* Thursday, November 03, 2005 3:39 PM
> *To:* 'Sean Wilson'; conlawprof at lists.ucla.edu
> *Subject:* RE: US v. Morrison -- question
>
> Depends on what you mean by backing off. I suppose the Raich case 
> could be cited as backing off but there the issues get complicated by 
> the drug question and conservatives can distinguish the case from 
> Morrison by saying that there was an economic exchange.
>
> Conceivably you are thinking of Tenn v. Lane where O’Connor joins the 
> centrists (couldn’t resist) to apply the application of Title II of 
> the ADA to the States over an 11^th amendment claim.
>
> Or you could be thinking of Nevada v. Hibbs where individuals were 
> allowed to sue states in federal court under the Family and Medical 
> Leave Act. Here both O’Connor and Rehnquist showed “cold feet” to the 
> recent Court trend.
>
> Don
>
> ------------------------------------------------------------------------
>
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Sean Wilson
> *Sent:* Thursday, November 03, 2005 12:26 PM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* US v. Morrison -- question
>
> Has there been a case decided after US v. Morrison that tells us 
> whether or not the Court is backing off this commerce clause stuff? I 
> had thought that O'Connor was getting cold feet, but I can't remember 
> how that thought arrived in my head. I seem to remember another case 
> out there -- is there one? Could someone please post its cite or case 
> name? Many thanks in advance.
>
> ------------------------------------------------------------------------
>
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