Interesting post. Does Wickard v. Filburn figure in? Like the farmer producing wheat for personal consumption who nonetheless was found to have a market effect, can someone who is giving away free birth control or sex toys be found to be engaging in economic activity, on the theory that absent their free transactions, the recipients would have been buying those items in the market?

I think you're stretching here. Griswold did indeed deal with "use" but the law struck down in Baird explicitly barred both distribution and sale. And while the case at issue there concerned (free) distribution, there's not a word in the decision to suggest that the result hinged on this fact in some important way.
More generally, though, I'm curious: How far are you willing to take this "bill of rights is void once you pull out your wallet" theory in service of insisting upon the broadest possible scope of commercial regulatory power? Would it be consistent with the First Amendment to bar the *sale* (though not "distribution") of Ulysses, The Communist Manifesto, or the Koran? Could the government require a license, not for the publication of a radical newspaper, but for the purchase of paper, ink, and printing equipment? How about a ban on remunerating clergy for the performance of their religious functions?

Tom T.,
Wickard's a bad comparison b/c the government thought wheat was moral, it just wanted to keep the price high. Raich is a closer case, b/c the government doesn't want anyone buying or selling pot at any price -- Pot Is Bad, and the majority's rationale was not that the cancer patients were getting free pot that otherwise they'd buy from the market (because buying from the market is illegal), but that their free pot could slip into interstate commerce. Remember, it wasn't a right-to-pot case; it was a federalism case. But our federal drug laws criminalize the mere possession of pot, even if you grow it in your own backyard and only grow enough for your private habit. I would be fine with all levels of government saying that you can have pot only if you grow it yourself and that purchase and sale are strictly prohibited -- the blackmarket price of pot would go down dramatically yet at the same time, the government wouldn't have to be in the business of regulating or contract enforcing commerce in pot.

Julian Sanchez,
How far are you willing to take this "bill of rights is void once you pull out your wallet" theory in service of insisting upon the broadest possible scope of commercial regulatory power?

That's not what I meant to say -- apologies if that's what it sounded like. Given that no right to sex, sex toys, etc. is specified in the Bill of Rights, I think that regulation of sex inherently is on firmer ground than regulation of speech, religion, assembly, and other enumerated rights. But to that extent, I also don't see donating money to political campaigns as an enumerated right, and therefore I think it's an activity that can be regulated, whereas the right to print flyers to give one's views about the candidates is part of an enumerated speech right and therefore cannot constitutionally be heavily regulated.

If I were a conservative, I might say that there cannot be a right that is not enumerated in the Constitution, and that the Ninth Amendment is an inkblot. (Justice Scalia, for example, has said that he disagrees with the "one man, one vote" principle of Baker v. Carr because the Senate inherently defeats that idea, so why apply it to the House?) Being a liberal instead, I find it entirely appropriate for the government to regulate economic matters into which it might be drawn by lawsuits (and other state-approved contracts such as marriage, which the government also enforces), but for the government to regard us as having some level of unenumerated rights in non-commercial, non-contractual conduct. Regulation of enumerated rights gets strict scrutiny; regulation of unenumerated, noncommercial rights gets heightened scrutiny; regulation of commercial behavior gets rational basis. (Obviously my advocacy for use of heightened scrutiny standard is another telltale sign of liberalism.)

We see something similar in our existing First Amendment jurisprudence, wherein "commercial speech" regulation receives heightened rather than strict scrutiny: "We have not discarded the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech."

If I understand your view, it's that explicitly enumerated rights like freedom of the press or of religion are due especially broad deference, such that the state is barred even from forms of economic regulation that heavily burden the core of the right. Whereas for unenumerated rights, such as sexual privacy, only the non-commercial core is protected. That would imply that, consistent with Roe v. Wade, the government may ban the performance of abortions for a fee, though it must permit free abortions. Have you proposed this novel workaround to Republican legislators? I'm sure they'd be delighted to try it if they thought it would pass muster.

The problem with your theory, under than the clear Roe problem (prohibiting charging a fee would clearly have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus), is that Griswold was an "as applied" challenge by doctors who operated a clinic where "[f]ees were usually charged, although some couples were serviced free." If the economic v. non-economic mattered, then why not mention it, and why allow a broad "as applied" challenge to those who essentially ran a business (This would be different than a facial challenge, which the court made clear the case was not).

Julian Sanchez,
Republican legislators wouldn't like saying that free abortions must be mostly unregulated, because then it would be a simple matter for physicians to charge a lot for the anesthesia or post-op pain meds, and nothing for the abortion itself. How do you think charity care in hospitals gets funded? There's not a special quality in hospital pharmacies that makes the aspirin pill magically cost $5 there; they overcharge the paying customers so they can afford to serve the non-paying customers. Under the current Constitutional regime, legislators can do fun stuff like demanding that abortion facilities be the equivalent of hospitals, which in states like Virginia would shut down all but one abortion provider.

zooba,
Thanks for addressing the constitutional prcedents. Remember that the crime in Connecticut was to use contraceptives; Griswold was convicted as an accessory to this crime. The right declared was one of marital privacy, such that a married couple's using contraceptives couldn't be a crime, and therefore giving them the contraceptive couldn't make Griswold an accessory. The general accessory statute (Section 54-196: "Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender") was still good law. It was the underlying offense in Section 53-32 ("Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned") that was struck down. I may be missing your point, but given how the statute was written, there's simply no way for Griswold's conviction to stand even if the Court used my commerce theory. Douglas's majority opinion goes on and on about the married couple's rights because they're why he's striking down the statute; he ignores Griswold because he's the mere accessory to a crime that is no crime.

My point was, the court DID NOT "strike down the statute." (That's a statement only properly reserved for a facial challenge). It said, as applied to Griswold, the accessory statute + the contraceptive statute was unconstitutional (admittedly, the implication of the decision was that the underlying statute was facially unconstitutional, but that was not the court's holding). As an "as applied," challenge, Griswold had to prove that the statute was unconstitutional as applied to her (i.e. the facts of her criminal case). The facts of her criminal case involved both economic and non-economic conduct. If the court were to hold that economic conduct could form a valid constitutional basis for her conviction, the proper result would be to vacate the judgment for the lower courts to determine if a new trial was necessary (i.e. whether the evidence of non-economic activity was harmless). Instead, the court reversed, meaning, on the record, their could be no valid conviction.

zooba,

I feel really dense, but I'm still not getting your objection. If Griswold's crime was being an accessory to an offense, and the offense itself -- married couple's use of contraceptive -- was declared to be no offense, how could the Court get into the economic versus noneconomic question? You're insisting on the "as applied" part, but that implies that MA was free to prosecute the married couples themselves for the underlying offense, just not the clinic folks it had gotten under the accessory + offense combo. I would be frankly astonished if that's actually how anyone regarded the holding at the time, particularly given Douglas's saying "Such a law cannot stand..." in reference to the underlying offense. The concurrers have a similar idea about what the majority opinion says: "I agree with the Court that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy..." If they're saying the law unconstitutionally intrudes upon the penumbral right of marital privacy, then how is the underlying statute NOT being struck down as applied -- not to the clinic -- but to married couples?

If the Court had been looking at Sec. 54-196, it could have said that only being an economic accessory is a crime, but that obviously would be crazy, because if something is a crime anyway, being an accessory to it for free doesn't really ameliorate the matter much. (Oh, you're a free driver for bank robbers! That's all right then! Whereas getting paid to do something we find a little questionable but not an underlying crime, like fornication or games of chance, becomes problematic as prostitution and gambling.)

I'm not saying this free yes, money no theory *ever* has been the Court's reasoning; this is my own screwy rationale. But I would be curious about cases where the Court has struck down prohibitions or regulations on for-profit activity not connected to enumerated rights. For example, has there ever been a "partial birth" abortion ban that only prohibited D&X when it wasn't charity care? (As it could be under a statute that didn't recognize D&X as necessary for health, so that a hospital could perform the procedure on a charity patient and avoid prosecution by arguing that it hadn't profited.) My understanding is that generally we prohibit things that we think are wrong, and most people's idea of wrong has a limited connection to profit. Prostitution is the main example otherwise: it's OK to be slutty, but not for money.