COLLECTIVE GOODS AND THE COURT: A THEORY OF CONSTITUTIONAL COMMODIFICATION.

Author:Orts, Eric W.
 
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ABSTRACT

Not everything is or should be for sale. Collective goods such as our democracy and parts of our natural environment would be destroyed if they were transformed entirely into commodities to be bought and sold in commercial markets. This Article examines a discrete and unexplored topic within the larger literature on commodification: the extent to which the U.S. Supreme Court participates in the commodification of collective goods. The Court shifts market boundaries through its constitutional interpretations that glorify commodities and exalt individual rights at the expense of collective goods. Examining two lines of cases holding that "money is speech " and "waste is commerce, " this Article contributes a theoretical understanding of the nature of collective goods and their commodiftcation through constitutional interpretation. It also makes recommendations for how the Court and our larger society should address these kinds of issues in the future.

CONSTITUTIONAL LAW * JURISPRUDENCE * CAMPAIGN FINANCE LAW * ENVIRONMENTAL LAW

INTRODUCTION I. A THEORY OF THE COMMODIFICATION OF COLLECTIVE GOODS A. Commodification in Historical Perspective B. Commodification and Collective Goods 1. Market Individualism and Commodification 2. Commodification of Collective Goods C. Constitutional Commodification in the Supreme Court II. MONEY IS SPEECH A. From Buckley to McCutcheon and Beyond B. Individualist Approaches to Campaign Finance 1. Laissez-Faire Free Speech 2. Egalitarian Free Speech C. Political Speech as a Collective Good D. Commodification of the Collective Good of Political Speech 1. The Market for Political Speech 2. The Constitutionalization of Money III. WASTE IS COMMERCE A. From Philadelphia to United Haulers: Commodifying the Environment B. The Constitutionalization of Waste CONCLUSION: PROTECTING COLLECTIVE GOODS FROM THE COURT INTRODUCTION

Collective goods cannot be bought or sold without destroying their essential nature. (1) For example, to divide a national park such as Yosemite into parcels of real estate would destroy its value as a collective good meant for the enjoyment of all citizens in perpetuity. To reduce a political democracy to a regime of purchased loyalties and official actions procured only by bribery would corrupt this kind of government.

This Article contends that the United States Supreme Court has failed in some important decisions to give sufficient attention and respect to collective goods. Consider, for example, cases that have declared that "money is speech" (2) and "waste is commerce." (3) The Court's pronouncements in these cases have unjustifiably shifted the boundaries of markets, and they have subverted collective goods by converting them into commercial commodities.

The Court accomplishes these transmutations either by treating "contested commodities," (4) such as elements of the natural environment, as marketable, or by treating existing commodities, like money, (5) as worthy of the same protection that it extends to non-market constitutional values, like speech. In other words, this kind of commodification occurs through judicial constitutional determinations about the scope and substance of commercial markets.

In this Article, we uncover, trace, and critique this phenomenon of judicial interpretation, which we call constitutional commodification. We also suggest remedies to this problem.

We are not the first to question the lines that are drawn between the world of commercial markets, in which everything is "for sale," and the world of non-market interactions and values, in which some things and activities are "not for sale." (6) But we focus on two aspects of commodification that have gone unnoticed. (7)

First, much of the commodification literature contemplates the effects of marketization on individuals and the resources and experiences they need to live flourishing lives. For example, theorists worry that prostitution reifies female subordination (8) and degrades sex among intimates. (9) Child labor, human slavery, and the purchase and sale of vital organs such as kidneys provide other illustrations of the pernicious consequences of commodification on individuals. (10) We share these worries, but we start here from the premise that the commodification of collective goods raises distinctive concerns, and threatens adverse consequences not only for individuals but also for the polity as a whole.

Collective goods, we maintain, cannot survive subjection to unfettered market forces. This is because the commercial market is paradigmatically a place for transactions among owners with unilateral dominion over the goods and services they sell. Collective goods are intrinsically held in common, and so no private person can or should exercise exclusive dominion over them. The commodification of collective goods necessarily overlooks, and may even betray, the interests of those who are not a party to the commercialized transactions.

A second reason that the commodification of collective goods warrants attention is that their marketization has often been facilitated and ratified through the courts--the least favorable branch for determining the limits of markets. Like the two-party transactions contemplated in much of the commodification literature, the Court acts as a proving ground for two adversarial parties. (11) Protection of collective goods, however, may not always be considered adequately in two-party adjudications. Notably, the term "collective good" is nowhere to be found in Supreme Court jurisprudence, (12) and courts have generally been inhospitable to understanding constitutional protections as collective rights. (13)

Given the mismatch between collective goods and two-party adjudication, (14) one might have expected the Court to act cautiously in many cases implicating collective goods, recognizing that Congress or state legislatures should address their disposition. (15) For example, in our paradigmatic cases, the Court might have declined to expand the scope of constitutional protection for money when used for political speech, or declined to restrict the authority of the states to protect land when used as waste dumps. (16) If anything, though, the Court has often taken the lead in cases widening the scope of commercial markets. It has commodified objects or activities whose value may be better captured non-monetarily, and it has elevated paradigmatic commodities such as money to constitutional status, and thereby insulated them from regulation motivated and informed by non-economic collective values. (17)

More formally, as we show here, the Court engages in what we call constitutional commodification, a process of interpreting the Constitution in two different but complementary directions. First, the Court sometimes assimilates a commodity (e.g., money) to a genuine constitutional good (e.g., speech). We call this the constitutionalization of a commodity, (18) and we elaborate it primarily through the line of cases, beginning with Buckley v. Valeo, (19) that equate money and political speech. (20)

Second, the Court sometimes treats collective goods as commodities whose value may be better captured non-monetarily. For example, beginning with City of Philadelphia v. New Jersey, (21) waste has been constitutionally determined to be "in commerce" rather than a noncommercial byproduct that would make it eligible for comprehensive environmental regulation by the states. (22) In these cases, a commercial interest in a collective good not otherwise obviously or previously treated as a commodity gains protection through interpretation of a constitutional provision. We refer to this interpretive approach as commodification by constitutional implication. When the Court treats a collective good like any other item in commerce, it immunizes economic transactions involving this newly constitutionally protected commerce from certain kinds of regulation.

Although we believe in the significant social value of commercial markets, we raise a warning about constitutional commodification because it threatens essential collective non-commercial values--in our two leading examples, the value of democratic government and the value of an unpolluted natural environment. We use these examples to explicate a theory of constitutional commodification with an eye toward the preservation of these collective goods.

In short, this Article offers two theoretical innovations. First, it extends commodification theory in order to elucidate when and why the law's treatment of collective goods risks problematic commodification. Second, our examination of constitutional commodification represents a theoretical contribution in its own right. Identifying the interpretive mechanisms through which the Court shifts market boundaries reveals why these developments are troubling both as a matter of substantive policy and institutional prerogative.

Our Article proceeds as follows. Part I briefly outlines the historical and philosophical literature on commodification. We argue that the existing theories do not track the harms that can befall collective goods when their constituent elements are commodified. We extend commodification theory to address collective goods.

Parts II and III provide case studies that exemplify constitutional commodification. Part II reviews the line of cases that chart the Court's recent march to an increasingly commodified conception of political speech and an ever greater insistence that any money spent on political speech deserves the same protection as political speech itself.

Part III considers a different line of cases decided under the negative or "dormant" Commerce Clause (23) that have restricted states from adopting various measures to protect their natural environment from the importation and disposal of solid and hazardous waste. We show that the Court has wielded the Commerce Clause in these cases to protect an emergent interstate market in waste...

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