Partial-Birth Abortion Ban Act
crossf at mail.utexas.edu
Mon Oct 10 18:40:23 PDT 2005
It seems obvious to me. Because:
An abortion involves the exchange of money for services.
Holding a gun within a certain distance of a school does not involve any
exchange of consideration.
At 08:23 PM 10/10/2005, Hamilton02 at aol.com wrote:
>This will not come as a shock, Marty, but we don't read the same cases in
>the same way. Raich explicitly provides that for the Commerce power to be
>legitimate, that which is being regulated must be economic. The Gun-Free
>School Zones Act failed in Lopez in no small part, because the Court found
>that that which was being regulated was noneconomic in nature, and refused
>to "pile inference on inference." Precisely the same reasoning in
>Morrison. In Raich, the Court, which is no longer even debating the
>standard (so saying "rest in peace" seems a tad optimistic), stated in
>plain English that that which is being regulated must be economic in
>nature to justify Congress's exercise of power. How in the world does the
>jurisdictional element solve this particular problem?
>Setting aside one's views on Roe v. Wade, is the act of an abortion more
>economic in nature than holding a gun within a certain distance of a
>school or a violent act? With all due respect to Sam, I don't think this
>is obvious at all.
>In a message dated 10/10/2005 4:13:10 P.M. Eastern Standard Time,
>marty.lederman at comcast.net writes:
>Sam is correct, of course, that the provision of abortions is economic --
>much more so than possession of "medical" marijuana. But, in any event,
>it wouldn't matter even if the conduct were not, in some sense, "economic."
>True enough, I object to the Lopez "line" of cases (may they rest in
>peace). But even if I confine myself only to the Court's "doctrine," such
>as it is (which is being very generous), then as long as there's an
>"affecting interstate commerce" jurisdictional element (and sometimes even
>when there's not -- see Raich), nothing in the Court's caselaw requires
>that the activity being regulated be "economic."
>Perhaps, per Morrison, there would be a requirement that "violent criminal
>conduct" be "economic" in order to sustain the law on an aggregation
>theory. 529 U.S. at 617. (And even so, we'd need an awfully broad notion
>of what's "economic" -- see Perez.) But even if there is such a doctrinal
>requirement -- and again, but see Raich -- that wouldn't be relevant here
>for two reasons (besides the fact that the activity is economic):
>(i) This isn't "violent criminal conduct."
>(ii) With a jurisdictional element, you don't need an aggregation theory;
>nor is there any "threshold" issue of whether the conduct is
>"economic." See, most obviously, the "felon-in-possession" statutes, such
>as that upheld in Bass and Scarborough -- not to mention the Hobbs Act and
>section 1962(c) of RICO (prohibiting the participation in an "enterprise"
>through violence, if the enterprise (not the defendant's conduct) affects IC).
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McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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