Constitutional
Law Class Notes
Things
are changing! Read the Chemerinsky bit
for tomorrow and Morrison for Thursday.
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
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.
[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.