Wickard

[Sanford Levinson]

The recent discussion about the "true meaning" of "economic" or "commercial
exchange" puts me in mindn of Bruce Ackerman's book on private property,
when he valuable distinguished between "scientific" (i.e. professional
economists') definitions of property and "ordinary" understandings.  I
think that it is clear beyond reasonable doubt that a professional
economist would find the Supreme Court's distinctions incoherent, perhaps
even stupid.  But it is equally clear that "ordinary people" would indeed
be shocked by the Chicago understanding of how much of our lives, including
our "intimate" lives, can be articulated in economic, even "commercial,"
terms.  Or, of course, one can go back to Engels' view of the "commercial"
basis of marriage in capitalist society.

I also think there is even a connection between this (very courteous)
discussion and our earlier, more acrimonious, discussion about
"authoritarianism" and "reasonable" discussion, inasmuch as all of this
ultimately involves the possibility of ideological opponents agreeing on a
common language of description.  The Chicagoan sees marriage as "economic
exchange," the Catholic as a holy sacrament.  How, indeed,  can they ever
be expected to agree on whether the Commerce Clause can be used for
regulatory purposes.  Are we committed to what an 18th century American
would have thought about economics and exchange?  Even Robert Bork has a
far more dynamic theory of interpretation than that!

sandy