Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
Chief Justice Marshall's seminal opinion in Gibbons v. Ogden, 9 Wheat., at 193-194, construed the commerce power from the start with "a breadth never yet exceeded," Wickard v. Filburn, 317 U. S., at 120. In particular, it is worth noting, the Court in Wickard did not regard its holding as exceeding the scope of Chief Justice Marshall's view of interstate commerce; Wickard applied an aggregate effects test to ostensibly domestic, noncommercial farming consistently with Chief Justice Marshall's indication that the commerce power may be understood by its exclusion of subjects, among others, "which do not affect other States," Gibbons, 9 Wheat., at 195. This plenary view of the power has either prevailed or been acknowledged by this Court at every stage of our jurisprudence. See, e. g., id., at 197; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 99-100 (1888); Lottery Case, 188 U. S. 321, 353 (1903); Minnesota Rate Cases, 230 U. S. 352, 398 (1913); United States v. California, 297 U. S. 175, 185 (1936); United States v. Darby, supra, at 115; Heart of Atlanta Motel, Inc. v. United States, 379 U. S., at 255; Hodel v. Indiana, 452 U. S., at 324. And it was this understanding, free of categorical qualifications, that prevailed in the period after 1937 through Lopez, as summed up by Justice Harlan: " 'Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.' " Maryland v. Wirtz, 392 U. S. 183, 190 (1968) (quoting Katzenbach v. McClung, 379 U. S., at 303-304).
Justice Harlan spoke with the benefit of hindsight, for he had seen the result of rejecting the plenary view, and today's attempt to distinguish between primary activities affecting commerce in terms of the relatively commercial or noncommercial character of the primary conduct proscribed comes with the pedigree of near tragedy that I outlined in
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