Raich v. Guillen

Howard Schweber schweber at polisci.wisc.edu
Fri Nov 4 13:53:02 PST 2005


This description concedes that this is not a law regulating the 
instrumentalities of commerce, but proposes that it is justified as an 
exercise of Commerce Clause authority by its relation to other laws that do 
regulate instrumentalities of commerce.  An "integrated program designed to 
protect the instrumentalities of commerce" is, precisely, an argument about 
the significance of the effects of something on commerce, not a categorical 
description of something as "commerce" or "non-commerce."

Note that this program is "designed to protect" these instrumentalities in 
the most indirect imaginable way; by creating a set of incentives in an 
unrelated area.  Moreover, the incentives are not themselves within the 
jurisdiction of Congress, which is why it must legislate a requirement that 
state lawmakers legislate a requirement that state courts impose a 
requirement that we hope will have the effect of encouraging state 
officials to act in ways that will protect the instrumentalities of 
commerce.  What could conceivably be less "categorical" than that??

hs



At 04:29 PM 11/4/2005 -0500, Earl Maltz wrote:
>The evidentiary rules are not "commerce,."  They are part of an integrated 
>program designed to protect the instrumentalities of commerce.
>
>At 02:50 PM 11/4/2005 -0600, Howard Schweber wrote:
>
>>But how are evidentiary rules in state court actions "commerce"?
>>
>>At 03:48 PM 11/4/2005 -0500, Earl Maltz wrote:
>>>For me, one of the most interesting parts of this discussion is the way 
>>>in which it reveals the difference Justice Thomas's thought processes 
>>>and the thought process that predominates among constitutional 
>>>scholars.  Thomas is a categorical thinker--Congress has plenary power 
>>>over the instrumentalities of commerce, but no power over things that 
>>>are "not" commerce.  Most modern constitutional thinkers, by contrast, 
>>>seem to focus on the magnitude of effects on interstate commerce.
>



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