MORE ON THE ORIGINS OF THE FULLER-COURTS JURISPRUDENCE - REEXAMINING THE SCOPE OF FEDERAL-POWER OVER COMMERCE AND MANUFACTURING IN 19TH-CENTURY CONSTITUTIONAL-LAW

Recent scholarship calls into question the traditional realist-behavio ralist interpretation of the justices of the Fuller Court as motivated by a desire to promote their policy preferences for laissez-faire eco nomics. This essay extends the assault on what might be referred to as the Holmesian paradigm oi the turn-of-the-century Court by exploring the jurisprudential origins of that Court's decision in the infamous K night case, in which the justices ruled that Congress had no authority under the commerce clause to regulate production. By demonstrating th at the Court's distinction between commerce and manufacturing was a co mmonplace of nineteenth-century constitutional law and not an ''activi st'' innovation, I hope to underscore the advantages of situating Supr eme Court decision making in the context oi distinctive jurisprudentia l traditions. Revisiting this earlier commerce clause jurisprudence al so sheds light on the contemporary Court's dramatic resurrection of th is contentious pre-New Deal tradition in the recent case of U.S. v. Lo pez (1995).