Article

Collective Goods and The Court: A Theory of Constitutional Commodification

Eric W. Orts and Amy J. Sepinwall

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 commodification through constitutional interpretation. It also makes recommendations for how the Court and our larger society should address these kinds of issues in the future.