Commerce Clause Hypothetical Addendum
jfnbl at earthlink.com
Fri Feb 10 10:16:06 PST 2006
If the decision upholding the state ban on ninth month abortions was
5-4, then even if the replacement of Rehnquist and O'Connor by
Roberts and Alito cost the petitioner two votes, she could still
squeeze out a 5-4 win if Thomas stuck to his guns and concurred on
Commerce Clause grounds with the equally steadfast dissenters from
the abortion ruling on the shelf-life of her SDP right. It couldn't
get any better unless your hypo had Thomas writing the 5-4 abortion
decision before stepping up to provide the decisive vote to stem its
erosion of the right to abortion.
You suggested that "while medical marijuana can seep into the
interstate market, an abortion can't." But doesn't the federal law
squelch the interstate market that would bloom if the ninth month
abortion was banned in some states but not others? Part of my problem
with the dissenters in Raich is that they blinked the fact that if
intrastate production doesn't apparently affect interstate commerce,
it's only because federal law prohibits the interstate commerce that
would otherwise be more obviously affected. If intrastate production
is allowed to meet demand in some states but not others, there's
going to be an interstate market even if federal law says there can't
be. Discrete production and general demand drives commerce, and it
can't be stopped except by taking measures to contain demand and
block distribution that would themselves have a more than substantial
affect on interstate commerce.
At 11:01 AM -0500 2/10/06, DavidEBernstein at aol.com wrote:
>Oh, and the herbalist is her friend, and accepts no money for the tonic.
>David E. Bernstein
>University of Michigan School of Law
>George Mason University School of Law
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