Wickard (Was: Do the Supreme Court's federalism decisionsprotectliberty?)

[Frank Cross]

As Mark Graber noted, all issues are economic.  While economics is
generally associated with financial transactions, money has little to do
directly with economics.  It is merely a convenient fungible tool to
facilitate economic transactions.

However, when the public (and the courts) use the term economic, they are
generally referring to economic transactions, where money changes hands,
though not always voluntary transactions, I think.  It is this sense of
economic that animates the commerce clause decisions.

However, this produces a problem.  The colloquial concept of economics is a
fairly fuzzy one.  More seriously, it is an analytically indefensible
position.  There is no instrinsic theoretically good reason to distinguish
between transactions involving money and those involving barter (even when
the barter includes considerations such as one's body or love).  While many
cases are surely straightforward economic ones, cases that fall on the
margin cannot be resolved in a principled way, using the economic test.
Consequently, they would seem to be readily manipulable by courts pursuing
non-legal ends.
Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712