Here is a rough transcript (unlike Justice Stevens, Justice Scalia’s remarks are never posted on the Supreme Court’s website) from about 25:00 where Justice Scalia introduces some of his remarks about the role of the courts in promoting, or harming economic liberty.
The judge stands a potential bulwark between the state and the citizen, as free economic actor. Or, alternatively, as the implementor of the state’s destruction of a free economy. Because if the judge is a good judge. that is to say, if he honestly applies the Constitution agains the legislature, and legislation against the Executive. he will produce the result, either economic freedom or economic bondage, that the Constitution and the laws prescribe. Of course there is the possibility that he will produce economic bondage when the Constitution and the laws do not require it, or economic freedom when the Constitution and the laws do not permit it. That is to say, there is always the possibility that he will not be a good judge. The criterion of good judging always being not to produce the best result, but to produce the result the Constitution and laws demand. For the good judge is the servant of the people. He is the servant of what the people have democratically adopted in their Constitution and in their laws. My remarks today will examine this judicial role. When is it legitimate to check legislative or executive action. And how, by that standard, have American judges fared, in preserving economic liberty. Why have they sometimes fallen down on the job.
Let me begin with constitutional law. I have long been an advocate of the proposition that it is not for judges to write their own policy preferences into the Constitution. That type of judicial activism is incompatible with our system of separated powers in which the legislative powers is entirely vested in congress. Indeed it is not compatible with democratic government at all. Unelected life tenured judges possess no democratic legitimacy. Economic liberty is not an exception to this rule. In a democracy, if the basic law, so permits, the legislature may decide to replace the free market with central planning, however unwise it may be. …
Fortunately for those who believe in efficiency and justness of free markets, the American constitution contains some powerful protections for economic liberty. That is, I should clarify, for negative economic liberty. Not the freedom from want, as enshrined in so many progressive constitutions. This latter variant of freedom from want, implies a necessary alteration of the traditional notion of liberty, as freedom from constraint.
Later, Scalia refers to John Locke as the “guiding light of American independence.”
Scalia notes that the structural provisions of the Constitution are most fundamental to protecting economic liberty. He mentions the doctrine of enumerated powers, the Due Process Clause, the takings clause, and the contracts clause.
“Our Constitution provides property owners with relatively few substantive rights. Almost all of our private rights in the Constitution are in the Bill of Rights, which was an afterthought . . . . Judges cannot enact atextual rights to enact their preferred policies.”
I did not have time to finish the rest of the speech, which I hope to do soon.