Thursday, September 10, 2009

Is Anything in Life Not Economic?


In my Constitutional Law class the other day I came across a rather troubling idea: that nothing in life is not economic in nature, or--if you just shuddered at the sight of a double negative--that everything in life is economic in nature.

Let me back up a second and explain how such a preposterous notion came up in a class on the Constitution. There is a clause in the Constitution called the Commerce Clause (Art. I, § 8, cl. 3), which gives Congress the power to regulate "commerce...among the several states." At the beginning of this nation's history, this clause was interpreted rather narrowly. "Commerce" meant essentially only merchant and trading activity, and was usually distinguished from manufacturing, farming, and producing goods for sale. But, over time lawyers started playing fast and loose with the definitions (I know, you simply can't believe that). The Commerce Clause soon encompassed not only commerce but also manufacturing and production.

That's a pretty broad definition of commerce, isn't it? Well, you ain't seen nothing yet. During the New Deal, commerce came to include anything that "in the aggregate might have a substantial effect" on commerce. Pretty soon lawyers and judges were simply using "economic regulation" as a shorthand reference for Congress' power to regulate commerce. And, what's more appalling, these same lawyers and judges were allowing Congress to regulate everything in sight, on the grounds that everything in life is economic.

Fortunately, the Supreme Court appears to have put a stop to some of this insanity in two recent cases (United States v. Lopez and United States v. Morrison) and ruled that Congress cannot declare everything economic and then regulate it. In Lopez, the Supreme Court held that the federal government did not have power under the Commerce Clause to outlaw guns in school zones. It's not that the Supreme Court was in favor of guns in schools; it's just that it's a simple non-economic criminal matter for the states to handle. But--the government's lawyers pleaded--if you allow guns into one school in Texas, that can affect the way students there behave; and if those students don't behave well, they won't perform well academically; and if they don't perform well academically, they won't get good enough jobs; and that in the long run, repeated thousands of times, will affect interstate commerce. A simple crime by a dumb teenager has been transformed (by crafty lawyers) into an assault on the economic foundations of America.

But, how did we get to the point where many of the brightest people in the land think that carrying a gun in a school is an economic activity? It's more than just a devious tactic employed by lawyers to win cases. On the contrary, it has been theoretically justified by many thinkers, and reflects the course of society in the last 250 years. At first blush, it may remind you of Karl Marx's economic determinism. But this idea has also been advanced by at least one leading contemporary legal scholar, who is usually (though, in my opinion, mistakenly) considered a free market zealot. Judge Richard Posner, the maven of the Law and Economics movement, has defined crime in purely economic terms as the "coercive transfer of either wealth or utility from victim to wrongdoer." The word "utility" is telling. It should remind you of the theory of utilitarianism, first systematically articulated and named by Jeremy Bentham and John Stuart Mill. What Posner (and many modern libertarians) have contributed to Bentham's and Mill's theories is an emphasis on modern economic analysis as a way of determining the "aggregate social value" of an activity. Economics no longer examines individual choices, but arrogates to itself the right to judge everything in society.

So, is there anything that's not economic in nature? Can we prove the utilitarians wrong? I think many readers of this post (if indeed there are many readers of this post) would automatically name examples of non-economic activities such as art or love. And they would of course be right. But, what about blogging? As one cynical website explains blogging: "Never before have so many people with so little to say said so much to so few." Doesn't that prove that blogging has no real utility, and therefore isn't economic in nature?

I think that we here at the Guild Review should transform this cynical witticism into a joyful affirmation of blogging, and of non-economic activity in general. We do it because it's useless--we do it because it's not economic!
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