Continuing a modern-day reawakening in the legal literature about constitutional-based economic liberty, James Ely has a new contribution, titled The Constitution and Economic Liberty. Here is the abstract:
This essay addresses the relationship between the Constitution and Bill of Rights and the concept of economic liberty. It calls into question the famous quip of Justice Holmes in Lochner v. New York (1905) that the Constitution was not intended “to embody a particular economic theory.” The essay contends that the framers of the Constitution clearly envisioned a constitutional order grounded on private property and a market economy. To this end, many provisions of the Constitution pertain to property interests and economic activity. It concludes that, although the Constitution does not endorse a laissez-faire regime, Holmes was wrong to suggest that the Constitution was entirely neutral with respect to economic policy. In fact, the framers favored a free market and sought to protect property and contractual rights.
More on the “Delphic” Holmes dissent:
Yet the central premises – that the Constitution does not endorse any particular economic theory – seems clear and warrants exploration. In common with other remarks in the Lochner dissent,3 this point is more asserted than demonstrated. There is a threshold question – is Holmes referring to the United States constitution or some theory of what constitutions should contain? Constitutions can serve different purposes in different societies.4 Moreover, Holmes has curiously framed the debate by setting up polar opposites. This is arguably a false dichotomy. In fact, the United States has never pursued a strict laissez- faire policy,5 and even as he wrote lawmakers were enacting a host of economic regulations. The reference to “paternalism and the organic relation of the citizen to the State,” although somewhat opaque, likely points toward the attacks on individualism and claims of economic rights that characterized the Progressive era.6 Of course, Holmes could be partly correct and partly wrong. The fact that the Constitution does not affirm either paternalism or laissez faire fails to establish the broader proposition that the Constitution has no relevance for economic policy.
Ely focuses heavily on capitalist sentiments in the late 18th century around the ratification of our Constitution. However, Ely does not even mention the development of economic liberty leading up to the ratification of the 14th amendment. It’s a quick read, worth it.
In my JoshCast with David Bernstein about his new book, Rehabilitating Lochner, David mentioned that any future resurrection of constitutionally protected economic liberty would come not from the academy, but from popular sentiments; though, articles do play an important part in laying the intellectual foundation of that movement.