Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
301 U. S. 1 (1937), which brought the earlier and nearly disastrous experiment to an end. And yet today's decision can only be seen as a step toward recapturing the prior mistakes. Its revival of a distinction between commercial and noncommercial conduct is at odds with Wickard, which repudiated that analysis, and the enquiry into commercial purpose, first intimated by the Lopez concurrence, see Lopez, supra, at 580 (opinion of Kennedy, J.), is cousin to the intent-based analysis employed in Hammer, supra, at 271- 272, but rejected for Commerce Clause purposes in Heart of Atlanta, supra, at 257, and Darby, 312 U. S., at 115.
Why is the majority tempted to reject the lesson so painfully learned in 1937? An answer emerges from contrasting Wickard with one of the predecessor cases it superseded. It was obvious in Wickard that growing wheat for consumption right on the farm was not "commerce" in the common vocabulary,13 but that did not matter constitutionally so long as the aggregated activity of domestic wheat growing affected commerce substantially. Just a few years before
13 Contrary to the Court's suggestion, ante, at 611, n. 4, Wickard v. Fil-burn, 317 U. S. 111 (1942), applied the substantial effects test to domestic agricultural production for domestic consumption, an activity that cannot fairly be described as commercial, despite its commercial consequences in affecting or being affected by the demand for agricultural products in the commercial market. The Wickard Court admitted that Filburn's activity "may not be regarded as commerce" but insisted that "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . ." Id., at 125. The characterization of home wheat production as "commerce" or not is, however, ultimately beside the point. For if substantial effects on commerce are proper subjects of concern under the Commerce Clause, what difference should it make whether the causes of those effects are themselves commercial? Cf., e. g., National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 258 (1994) ("An enterprise surely can have a detrimental influence on interstate or foreign commerce without having its own profit-seeking motives"). The Court's answer is that it makes a difference to federalism, and the legitimacy of the Court's new judicially derived federalism is the crux of our disagreement. See infra, at 644-646.
643
Page: Index Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 NextLast modified: October 4, 2007