Constitutional Law Class Notes 1/13/04


Things are changing!  Read the Chemerinsky bit for tomorrow and Morrison for Thursday.


Breyer’s dissent in Lopez


Three justices join Breyer in his dissent.  Breyer was just one vote shy of the majority.  This was a 5-4 decision.  This was one of those razor-thin majorities.


How did Breyer analyze the Commerce Clause issue in this case?  He seems to argue for and use the rational basis test.  Why is this different from the majority’s understanding of the case?  What’s the scope of the disagreement between the dissent and the majority?  Do they apply the same principles but get to different results, or do they actually disagree on basic principles?


So Breyer makes a “rational basis” inquiry.  The majority does something different.[1]


Is Breyer almost proposing a procedural test rather than a substantive test of the limits of the Commerce Clause?


Part of what Breyer seems to be saying is that we should consider the issue in a practical way instead of a technical way.  How much of a connection is there between guns in schools and economic problems?


But this isn’t the rational basis distinction: Breyer says we’re not reviewing whether or not X is true, but rather whether or not Congress had a rational basis for thinking that X is true.  The X in this case is “guns in schools substantially affect interstate commerce”.


How close a connection does there have to be in order for there to be a “substantial effect”?


1.     Is there a substantial effect on interstate commerce?  Both the majority and dissent believe this question must be asked.  Just what is it that’s supposed to have a substantial effect on interstate commerce?  Breyer wants to aggregate the effects of all acts of guns in schools.

2.     Does this class of activity have a significant effect on interstate commerce?  This is what Breyer wants to know, but the majority doesn’t take it this way.


Wickard v. Filburn


Wickard is very important!  This is the case of an Ohio farmer growing his own wheat for his own use.  He was allegedly in violation of a statute limiting the amount of wheat he could grow on his farm.  He grew too much!  He claimed that he wasn’t selling the wheat in his state or any other state.  So he argued that the federal government must not be regulating his “commerce” when all he is doing is growing wheat at home and using it at home.  The Court, in that case, said that if you take the one farmer together with other similar farmers there will be a substantial effect on interstate commerce.


The Court says that Wickard is as far as the Court has ever gone before, and they more or less say that they’re not going to let congressional Commerce Clause power to go much farther. 


How does consuming home-grown wheat affect interstate wheat?  The idea of the statute was to decrease the supply to increase the price and help the farmers.  If you grow your own wheat, you don’t have to buy it on the open market, and thus you’ve reduced the demand for wheat and in turn the price will go down.


So under Wickard, the government has the power to prohibit people from home-growing tomatoes or whatever other crop they’d like.


But notice what the statute in question in Wickard does: it doesn’t regulate any activity that we could properly call interstate.  Instead, it regulates a purely intrastate activity.


The majority says that we’ve gone that far and won’t go farther.  Breyer says that we’ve already gone that far, and the “guns in schools” statute doesn’t go that far.


The aggregation principle


The majority acknowledges that Wickard adopted the aggregation principle.  But does the majority believe that this applies to guns near schools?  Do they apply this principle and get a “no” answer?  Or do they claim that the aggregation principle only applies to cases like Wickard but not to Lopez?


The majority opinion says “we accept the aggregation principle with respect to local activity that is economic in nature.”  If the local activity has an economic character to it, you can aggregate that to see if all similar local activity has an impact on interstate commerce.  If the local activity is not itself economic, the Court isn’t sure if they’ll extend the aggregation principle.


How is growing tomatoes at home, for example, an inherently economic activity?  Is raising kids at home an inherently commercial or economic activity?  Where do we draw the line between (local) economic and non-economic activity?  The majority opinion labels “growing wheat at home” as an economic activity.  That allows for aggregation.  However, possessing a gun near a school is not economic in nature.


Breyer asks: “How can we tell that having a gun near a school is non-economic in nature?”  Lopez didn’t make the gun.  He either had to buy it, steal it or get it as a gift.  If he bought it, that’s economic.  If he stole it, that’s kind of economic.  If it was given as a gift, someone else bought it, and that’s arguably economic.  How do we draw the distinction?  What makes something economic?


What about child-rearing?  If growing wheat at home is economic, isn’t child-rearing economic too?  It means the child care provider is out of the labor force and also isn’t hiring a nanny or someone else to take care of the kids.


Breyer says it doesn’t matter whether a gun is economic in itself.  It doesn’t matter if wheat is economic in itself.  The issue is whether those guns near schools have an economic effect.  Breyer believes that they do: guns near schools leads to violence near schools.  That leads to bad schools and bad educational quality, which in turn drains our economy.


Breyer believes that you always aggregate.  The majority believes you only aggregate when you’re dealing with “something economic”.


The majority cares about whether or not the local activity that Congress is attempting to regulate is itself economic in nature or not.  The majority doesn’t explicitly repudiate the aggregation principle with respect to non-economic activity, but you can argue that they do this implicitly.


A pause


There’s a lot going on here!  Even though we had relatively few pages to read, they are very difficult conceptually.  But it’s our job to understand it!  Don’t worry if you’re confused today.  Realize that there’s a lot going on here.  It’s not transparent and we have to really work to figure out what’s really going on here.


Don’t panic!  We have two whole weeks to figure this stuff out.


The “rational basis” idea


We looked at two questions that define the substantive test as to how you know whether or not you have congressional power under the Commerce Clause.  The “substantial effect” test is usually where the action is.  In order to know whether there’s a “substantial effect”, you have to ask whether the local activity in question is “economic” in nature.


But there’s a third question: Breyer says that all the past precedents show that when the case comes to court, the issue isn’t simply “is there an effect?”.  That’s the question for Congress to answer.  Breyer wants to claim that the court’s own view on the substantial effect question doesn’t matter.  The court is only supposed to make sure that Congress was rational or reasonable, that is, that Congress had a rational basis for finding a substantial effect.  Breyer thus claims that the court should be making a somewhat different inquiry than the majority wants to make.


Back to Class Notes

[1] Important lesson: if you’re talking to another lawyer and you’re not sure if you’re both talking about the same thing or you’re not sure what words to use, you should take note.