Wednesday, March 25, 2015

How Biased Towards Libertarianism is the US Constitution?

by Michael Dorf

My latest Verdict column discusses  a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution. Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner.

The main point of my column is not, however, to defend liberal constitutional scholars against Professor Sherry. My chief aim is to examine an unspoken premise that she and Epstein share: namely, that implementing economic libertarianism in the name of the Constitution would require a substantial change to our existing constitutional regime. I challenge this assumption in two ways. I note that: (1) while the SCOTUS has not accepted the invitation of the economic libertarians to revive Lochner as a matter of substantive due process, the Court has in fact been very friendly to the deregulatory agenda of economic conservatives while using other doctrines; and (2) the main contribution of the American Constitution to economic libertarianism comes not from judicial enforcement of the Constitution or courts more generally, but from the hard-wired features of the U.S. Constitution—its multiple “veto players”—that tend to stymie efforts to adopt progressive policies.

I suggest at the end of the column that all is not lost for liberals, however, because multiple veto gates make it difficult to change the status quo, so that when progressives do manage to secure legislation that advances their agenda, conservatives will have a difficult time repealing it. And indeed, as I note in the column, that is how things have worked out over the last 35 years or so. With the exception of AFDC—which was “reformed” by a Democrat—the key elements of the social safety net adopted by the Democratic coalition during the New Deal and Great Society periods—Social Security, Medicare, and Medicaid—remain.

But I do not want to appear Panglossian. The fact of multiple veto players in the U.S. constitutional system does not merely exert a status quo bias. It exerts an anti-regulatory bias. The reason is that much of what progressives want requires annual appropriations and executive energy. It is notable that each of the programs mentioned in the last paragraph is an “entitlement” in the sense that Congress need not vote for new funding each year in order to sustain it. And while there is some bureaucracy associated with these programs (e.g., to determine eligibility for Social Security disability or to oversee reimbursements), the basic role of the federal executive for each is cutting checks.

However, much progressive legislation does not take the form of entitlement spending and is thus vulnerable to the anti-regulatory bias of multiple veto players. For example, a determined conservative Congress--or just a conservative blocking coalition in Congress--can severely undercut statutes aiming at environmental protection or preventing and remedying housing discrimination without repealing those statutes simply by failing to fund the relevant enforcement mechanisms annually. Likewise, a determined conservative president can exercise prosecutorial discretion and otherwise enforce regulations less than fully vigorously.

In recent years, non-defense discretionary spending has been about 17% of all federal spending, whereas entitlements have accounted for about half of federal spending. Or in crude terms, that means that about three out of every four "progressive" dollars the government spends is largely protected against the libertarian bias of our multi-veto-player system. Actually, the fraction is substantially larger even than that, because much of the non-defense discretionary spending is on things like transportation, international relations, and other matters that are not regulatory at all, much less progressively regulatory. We need not get bogged down in accounting conventions, however, to say with confidence that a very large majority of progressive federal dollar spending is in entitlement programs that are largely immune from the multi-veto-player libertarian bias.

That would be generally good news for progressives if the only point of government were to provide a social safety net. But of course the goods produced by different kinds of government programs are often not substitutable in any meaningful sense. Yes, (somewhat) progressive tax rates and Social Security get locked in by the multi-veto-player nature of the U.S. government, but so does protection against needed regulation for politically well-connected multi-billion-dollar industries.

Indeed, focusing on the veto-player-protected entitlements misses the fact that the smaller dollar figures at stake for non-defense discretionary spending are themselves partly the product of the veto-player phenomenon. In our system, it is extremely difficult to generate and sustain the political will necessary to regulate, rather than simply to tax and transfer. Of course, I'm not saying that it's easy to enact tax-and-transfer programs. But given that such programs have staying power, it is easy to see why progressives have tended to focus what political power they have on enacting such programs.

Finally, this analysis suggests that criticism of President Obama for "wasting" so much of the first half of his first term on the ACA is short-sighted. A Democratic president who wants to do lasting good sensibly focuses his domestic policy agenda on enacting or expanding entitlements. Whether Obama ends up having succeeded will depend ultimately on a factor beyond his control: Whether the SCOTUS--which, in truth, is yet another veto player in our system, guts the ACA in King v. Burwell. (I discount the possibilty that a future Republican president would be able to undo the ACA by purely executive action, although that would be a live issue were the Court to uphold federal subsidies in King via Chevron deference, as I've noted before.) 


wolflarson71 said...

I find the bifurcation debate between economic rights and non-economic rights (or fundamental vs non-fundamental) fascinating and think the middle ground of accepting some and not others the most untenable.

It's interesting that some of the old progressives were against this artificial distinction and warned modern progressives against adopting such approach.

Justice Black said that Griswold “elaborated the same natural law due process philosophy found in Lochner” and “is no less dangerous when used to enforce this court’s views about personal rights that those about economic rights”.

Hand objected to Brown vs. Board of Education saying "I can see no more persuasive reason for supporting that a legislature is a priori less qualified to choose between personal than between economic rights".

Holmes said "I think the word 'liberty' in the 14th Amendment is perverted when it is held to prevent the outcome of a dominant majority" and "a law should be called good if it reflects the will of the dominant forces of the majority, even if it will take us to hell".

Shag from Brookline said...

Query: Is the bias towards libertarianism in the Constitution a result of the slave power in 1787 and 1791? If so, do current day libertarians build on that foundation that some thought undone by the Reconstruction Amendments?

Joe said...

Black also was a solo dissenter in a case involving the Takings Clause, so when he thought the text demanded it, he protected economic rights too. And, there is overlap. After all, after Griswold, the right to buy contraceptives.

All rights are not going to be treated the same though. "Life" and "liberty" are listed before "property" and line is not "give me property, or give me death." Economic rights are more "public" in some ways, since they are often other orientated.

The author of Griswold did not say he thought no protections should be given to economic rights. But, various justices did note that historical developments showed the value of allowing more regulations.

There is overlap though & simple lines in time tend to be shown to be problematic.

Joe said...

ETA: Some might note that liberty is going to involve interaction with others too. Sure. But, and this would clearly involve expansive discussion to deal with details, we still have a general "public" and "private" sphere.

Economic matters are more "public" in various ways, why something like freedom of thought is more "personal." And, the people cited knew this too. Holmes, e.g., treated speech differently than contracts.

wolflarson71 said...

Joe- the 9th amendment says other unlisted rights shall not be denied or disparaged. The point is that that there is a serious case of cherry picking some rights over others without a coherent guiding principle and that's why old progressives and modern conservatives (Bork comes to mind) simply prefer extreme deference to legislatures even if the legislation is unjust. Otherwise, there is no principled case to be made against a return to Lochner engagement by courts.

Joe said...

I don't know what a "Lochner engagement" is supposed to mean exactly. If it means judicial review, yes, that is the mainstream sentiment. The devil will be in details, such as the dissent by Harlan supporting a ten hour law but not racial segregation in streetcars.

The book is not merely a matter of "judicial review" -- even if we defer to legislatures, they would have a duty to determine the proper calculus for rights. We would still have to determine that sort of thing.

I'm not sure what the 9A reference gets us -- there are both economic and non-economic rights listed and unlisted. We would have to determine how to apply them overall.

And, there is a "principled case" to a "momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." (to quote a fan of Holmes, Justice Frankfurter).

Frankfurter was an "old progressive" as was Brandeis, who is famous in part for his comments on a right to privacy.

wolflarson71 said...

Well, Lochner engagement means courts reviewing economic regulation more thoroughly and having the same review standard as fundamental rights. The Institute for Justice has been fairly successful in this area. Two examples that come to mind are regulation regarding selling caskets and braiding hair- the Institute for Justice convincing the courts that the legislation was naked economic protectionism. Check out this Reason TV review that discusses the tension between libertarians and conservatives on this issue.

Unknown said...

@wolflarson71: You said, "the 9th amendment says other unlisted rights shall not be denied or disparaged", which is not exactly correct. The text reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The provision is a constitutional interpretation instruction: the fact other rights have been explicitly mentioned in the constitution and/or amendments is not a valid basis for saying, "Hey, that right's not listed in the text. So, that right does not exist." The amendment does not say whether or not any other rights actually do exist, much less whether they are denied or disparaged; it only says the fact these others are specified is not a good enough reason to presume others do not exist.

Shag from Brookline said...

Some, perhaps more than a few, enumerated rights require interpretation/construction in application. As to unenumerated rights, first they have to be identified - including when such came into being - to be able to interpret/construe them, especially under originalism fixation rules.

wolflarson71 said...

Unknown- Your last sentence is confusing. How is "others retained by the people" agnostic on "other" rights? It clearly refers to them (granted, in the abstract).

wolflarson71 said...

Shag- the courts have committed to identifying what fundamental vs non-fundamental rights are so I don't see a unique challenge in this regard.

Joe said...

"Lochner engagement means courts reviewing economic regulation more thoroughly and having the same review standard as fundamental rights."

Economic regulation, as noted, can overlap with fundamental rights. Simplistic line-drawing, if that is the point, is problematic. The review essay in effect has various liberal leaning scholars accept this as well.

There is still some principled difference between regulating caskets (and that group at times won on "rational basis" standards of review) and free speech / classifying by personal characteristic and professions who sells eyeglasses.

The difference between "libertarian" and "conservative" is noted. The review essay cited is telling on this very point, as we see how the author in question handles abortion and the rights of homosexuals.

Joe said...

"Lochner engagement means courts reviewing economic regulation more thoroughly and having the same review standard as fundamental rights."

One confusing thing here is if we look at what the Supreme Court in the era of Lochner actually did. Free speech et. al. was not given too much protection.

The "engagement" ultimately was more often a matter of "false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare." [Planned Parenthood v. Casey]

As people like Prof. Victoria Nourse has noted as well the level of scrutiny for the police power was generally much more lax. In time, "fundamental rights" was put to a higher test. OTOH, certain areas of distrust was deemed based on illegitimate facts. Economic equality was understood differently.

The consistent "hands off" approach of some progressives never had staying power. The three judges cited are not quite representative though as a dissenting viewpoint, they are worth respectful notice.

Shag from Brookline said...

I assume that "fundamental rights" that are not enumerated are not necessarily the equivalent of "natural rights, (whether God-given or otherwise). This would suggest that some "fundamental rights" may evolve over time and are not limited to being in existence in 1791 when the 9th A was ratified. Does this suggest a flaw in the originalism fixation rule? Or, for originalism, would such "fundamental rights" have had to exist at the time the 9th A was ratified? If so, what is the evidence back then of such "fundamental rights"?

wolflarson71 said...

Joe- I agree that line drawing is problematic but that's what the courts have done and it's rare when courts strike down economic regulation like they did prior to Lochner. Since then, the line drawing distinction has existed with rare exception.

wolflarson71 said...

Shag- could the same thing be said of privileges and immunities?

Joe said...

There is a line drawn but as the essay notes, as applied, economic regulations of various types have been looked at closely and overturned. Sale of contraceptives, regulatory takings, recent Commerce Clause jurisprudence, state immunity rules no matter what the subject etc.

Again, it often turns on different understandings on things on what "equal protection" means, including when regulating economic legislation. There is a "principled" way here.

Shag from Brookline said...


"Shag- could the same thing be said of privileges and immunities?"

should perhaps separately be addressed regarding "privileges or immunities" in the 14th A, which may historically have a meaning different from the not quite similar phrase in the 1787 Constitution. Under originalism each has a different fixation timeframe, a spread of some 80 years during which much happened in America. Off the top of my head I don't recall how Kurt Lash may has distinguished these phrases.

But my questions on the 9th A may also be addressed to these similar phrases. I don't have definitive answers to provide to these questions. I'm curious as to the views of originalists.

wolflarson71 said...

Joe- the strict scrutiny/rational basis artifice stems for a footnote in the Caroline Products opinion and can hardly be said to be "principled". What is the principled difference between protecting insular minorities compared to say a contract right? This lack of a principled difference is what led to objections from Hand and Frankfurter. Even when it came to the Bill or Rights and the 14th amendment, Hand said "we may read that as admonitory or hortatory, not definite enough to be guides on concrete questions. These extreme majoritarians recognized that once you start allowing artificial exceptions, the road back to Lochner is inevitable.

wolflarson71 said...

Joe- "economic regulations of various types have been looked at closely and overturned". The rubber stamp standard here is "it is enough that there is an evil at hand for correction, and that it MIGHT BE THOUGHT that the particular legislative measure was a rational way to correct it"(William Douglas). This standard of review is the opposite of "looked at closely".

Samuel Rickless said...

I don't think you need to go as far as Ely or Rawls (or any of the somewhat far-fetched theories mentioned in the last footnote of Sherry's article) to defend the idea that there is a relevant difference between personal economic rights (such as liberty of contract) and personal non-economic rights (such as the right to use contraceptives). I am happy to accept that personal economic rights are fundamental, just as the right to privacy is fundamental. But the US Constitution (and here, I think, Douglas gets it right in Griswold) protects not merely rights, but the meaningful exercise of rights. So, for example, as Justice Douglas notes, the exercise of the right to free speech would not be meaningful in the absence of protection of the right to freedom of association, and the exercise of the right to freedom of association would not be meaningful in the absence of protection of the right to keep one's associations private. (Justice Douglas wrongly assimilates this right to privacy with the right of decisional privacy relevant to Griswold, but that's another matter.) So freedom of association and the right to (informational) privacy, even though not explicitly mentioned in the Constitution, are protected by it because they are necessary conditions for the meaningful exercise of the right to free speech.

Applying this to Lochner, consider that exercise of the right to liberty of contract, though meaningful under ideal circumstances, is far from meaningful under the kinds of circumstances that permit gross exploitation. For example, if there is a large pool of uneducated workers vying for a small number of jobs controlled by a relatively small number of wealthy companies, a totally unregulated labor market will generate near starvation wages and unsafe working conditions. A choice between working under those conditions and starving is not meaningful. Freedom to choose between X and Y, when X and Y are the only options and both are horrific, is no more meaningful than the coerced choice between being killed by an assailant or watching one's spouse be killed by the same person.

The point that needs to be pressed against Epstein is that the New Deal regulations were defensible as necessary means of protecting the meaningfulness of the economic freedoms that we should all agree are fundamental. The mistake of most liberals (and of Epstein), I think, lies in assuming that treating both economic and personal rights as fundamental settles the question of whether economic regulation by the state is constitutionally permissible. The assumption is false. Under specific kinds of non-ideal circumstances, state infringement of the right of liberty of contract is required to protect the meaningful exercise of that very right.

wolflarson71 said...

Samuel- you are missing the point by those who want judicial engagement when it comes to all rights. Yes, courts should forbid unsafe working conditions and gross exploitation. Lochner, however, was not about this and involved unionized bakers who lobbied against immigrant competitors. Same argument you hear today by conservatives and unions who are against "cheap labor". So instead of extreme deference to legislatures today based on merely thinking there might be some harm, courts would have determine if there is a real public safety issue at hand as opposed to protectionism. The old progressives and some new conservatives want pure majoritarianism, exploitation be damned. The new libertarians want full, consistent strict scrutiny and recognize the bifurcation we have today is rightfully criticized as political and incoherent. Btw, I have not read Epstein's position on these issues (some Randy Barnett though) nor the review rebuttal but intend to soon.

Sam Rickless said...

Lochner was about maximum hours of work legislation, justified as a measure to protect the health of bakers. The justices, who probably hadn't set foot in a bakery at 4am, didn't have a clue. They distinguished the case from Holden v Hardy, which upheld maximum hours of work legislation designed to protect the health of miners. Whether there were unions or immigrants involved is neither here nor there.

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Evan Bernick said...
This comment has been removed by the author.
Evan Bernick said...


That's just the point-- the hours restrictions in the Bakeshop Act were not about protecting workers' health at all. Although presented as public safety measures, the restrictions were in fact the product of a zealous lobbying effort on the part of nativist unionized bakers at factory bakeries. These bakers sought to protect themselves against competition from Eastern European immigrants who lacked the capital for expensive equipment and made their bread by hand, which required them to work longer hours. The actual operation of the act (which was riddled with exemptions) revealed this protectionist end.

The state had offered no proof that allowing bakers to work beyond the allotted hours posed a material danger to the bakers' or the public's health or that bakers were uniquely incapable of making decisions for themselves about what was necessary to support themselves or their families. Ironically, despite the praise that was lavished upon Holmes for his focus on "social facts," he doesn't cite any facts in his dissent-- he expressly says that he does "not need facts," and articulates a standard of review that's so deferential that only a piece of legislation inspired by lunacy would fail to meet it (anticipating the rational basis test).

Lochner stands for the proposition that if you're going to restrict someone's constitutionally protected liberty (and only Holmes actually denied that liberty of contract was a legitimate concept), you need to do so on the basis of evidence-- you can't just pronounce the words "public safety" and be done with it. It is that kind of judicial engagement that we see in cases involving heightened scrutiny, and there's no reason that judges shouldn't do it in all constitutional cases.

Shag from Brookline said...

The discussion on Lochner inspires me to reread Jack Balkin's "'Wrong the Day It Was Decided:' Constitutional Historicism" available at:

wolflarson71 said...

Evan- well said. If the court came to the conclusion that 10 hour working days wre "oppressive" or involved some public safety transgression, then fine. The point is that it deserved scrutiny as opposed to rubber-stamp post Lochner deference.

Evan Bernick said...

Indeed-- even if one disagrees with the outcome in Lochner, pronouncing the words "public safety" shouldn't insulate legislation from meaningful judicial review. Which is what's happened under the rational basis test, with some notable exceptions that prove the rule.

Evan Bernick said...

I'd also add that Griswold is incoherent unless Lochner is correct-- that there is a sphere of liberty that that the state cannot infringe without articulating a justification grounded in a legitimate end of government. "Public safety," backed by nothing, is insufficient. "Morality," backed by nothing, is insufficient. Douglas wanted to get to a result that would protect an exercise of liberty that he valued without "Lochnerizing," but Black saw that he was doing precisely that.

Joe said...

"What is the principled difference between protecting insular minorities compared to say a contract right?"

First, let us recall the title of the essay is not "economic rights and non-economic rights" but "Economic Libertarian Constitutionalism Never Really Died."

It has been noted repeatedly that economic rights are clearly an aspect of fundamental rights & various examples were provided. There is not an across the board "rubber stamp" standard there. Not seeing any refutation on that point. The "contract right" remains -- you can freely choose to be a teacher or ballet dancer and contract for your services. There were loads of economic regulations upheld then too. The difference, as noted, is a changing view of the facts, including what is necessary for equal protection of workers in the market place. It is less economic "libertarian," to go back to the original essay.

Finally, and the fact you do not AGREE with it is not the same thing, there is a "principled" difference in that it is argued that such minorities are not as able to get equal relief in the normal political processes. Again, showing overlap, some argued that wealth was a category warranting special scrutiny. Anyway, the special "principle" of protecting minorities (and F4 provides other examples) as a reason for judicial review goes back to the founding of the Constitution.

"hours restrictions in the Bakeshop Act were not about protecting workers' health at all"

Justice Harlan, who supported freedom of contract, wrote a dissent showing it was. That it was "reasonable" on that grounds. 5-4. Looks like a pretty close call. In time, it was understood -- and the question was decided by elections of the people who appointed and confirmed judges -- that various general economic policies was a factual question best entrusted by the legislatures as a matter of commerce. It is "principled" to determine that commerce is more "public" and open to regulation while other things are more "private" such as family life, free thought and so forth. It is not compelled. It's a choice. But, it's principled.

"Griswold is incoherent unless Lochner is correct-- that there is a sphere of liberty that that the state cannot infringe without articulating a justification grounded in a legitimate end of government. "Public safety," backed by nothing, is insufficient."

Harlan showed there was a reasonable grounds to show a legitimate end & in time it was generally understood that maximum hours legislation was an appropriate means to advance public welfare. If that is the only rule of Lochner, it is pretty weak tea. The general idea usually is that Lochner stands for the courts being more wary of economic regulations, particularly being suspicious of certain types.

It is not "incoherent" to have a different view of economic regulation generally (while still realizing some regulations can be unreasonable) while given special concern for various personal rights. The private v. public division of legitimate governmental power goes back to the Founding. It is particularly not incoherent to -- on the balance of things -- to determine there are certain fundamental rights like marriage that are more personal, private, than regulation of the public sector.

Joe said...

Samuel Rickless as a whole said it well in his longer comment. Ultimately, yes, it is a matter of facts -- what is necessary for the public welfare. Anyway, the first comment confused the whole debate at hand. "Libertarian" is not the same thing as "economic" v. "non-economic." Liberals support economic rights in various ways. They go about it a different way.

Shag from Brookline said...

The title I earlier provided for Jack Balkin's article failed to include "Lochner." The correct title is:

"'Wrong the Day It Was Decided:' Lochner and Constitutional Historicism"


Evan Bernick said...

"Harlan showed there was a reasonable grounds to show a legitimate end & in time it was generally understood that maximum hours legislation was an appropriate means to advance public welfare. If that is the only rule of Lochner, it is pretty weak tea."

Well, no, it's not-- Harlan's analysis is far from what you see in, say, Williamson v. Lee Optical. He adopts a presumption of constitutionality, but it's one that at least takes into account the available evidence. Which is emphatically not what happens in rational basis cases today, which take Holmes' approach-- whatever the majority decides is rational, unless challengers can refute an infinite set of negatives. If Harlan's concurrence was the law today, things would look very different.

"It is not "incoherent" to have a different view of economic regulation generally (while still realizing some regulations can be unreasonable) while given special concern for various personal rights. The private v. public division of legitimate governmental power goes back to the Founding."

The distinction between "economic" and "personal" liberty does not go back to the Founding. It's a product of an understanding of political philosophy that is quite different than that of the Founding. For the Founders, it was simply "liberty." You have the right to do what you choose with your own body and the fruits of your labor, and you don't sacrifice that right when you leave the home-- if it is to be restricted, there must be a good, public-oriented reason, not mere ipse dixit.

"It is particularly not incoherent to -- on the balance of things -- to determine there are certain fundamental rights like marriage that are more personal, private, than regulation of the public sector."

When you say "regulation of the public sector," I think you mean "the regulation of individual freedom in a context in which the exercise of that freedom impacts others." To the extent that you are telling individuals that they cannot work beyond a limited number of hours, you are telling them that they cannot do what they would otherwise be free to do to earn a living, and that others cannot benefit from their labor to that extent. If you're licensing florists and requiring prospective florists to pass exams administered by their future competitors, and those exams have a lower passage rate than the state bar exam, people won't be able to enter that trade.

As Douglas once put it, the right to earn an honest living is "the most precious liberty that man possesses." I don't think that one can coherently say that it is not "personal" or less "personal" than any so-called fundamental rights.

Importantly, Griswold is not consistent with Footnote Four. It's a rejection of the Footnote Four orthodoxy that Sherry defends, insofar as Footnote Four has nothing to say about "personal rights" as distinct from "economic rights." Footnote Four is actually based on an idea of rights that prioritizes political participation. There's nothing about privacy in Footnote Four.

Joe said...

Justice Harlan did not write a "concurrence" -- he wrote a dissent. You change the subject too - Harlan did provide grounds for a legitimate basis, which was argued not to exist. It is duly noted, though various state courts do things somewhat differently than the feds in respect to economic regulations as a whole, the standards are different these days. As noted, this is true across the board -- police power was generally stronger then. All the same, in a range of ways, various economic regulations fall too.

I didn't say "economic" v. "personal" liberty goes back to the Founding. I says private v. public did. And, so it was. Basic concern was provided regarding the freedom of conscience/speech, liberty from physical restraint (a range of criminal justice amendments) and the home was deemed particularly protected. Your home was your castle etc. Economic rights were protected too, but the economic field as a whole was more public, more open to regulation. Contract rights were protected, but contract law was just that -- a group of rules and regulations. Surely more open to view than let's say marital bedrooms.

No, I think "public sector" specifically is a general zone where more regulation was deemed appropriate. In general, yes, impacting others matters too but such a broad libertarian viewpoint is not compelled by the Constitution. The home and the marketplace are not treated the same way there -- more grace to the legislature is given regarding the latter. Licensing laws have a long acceptance. Regulating florists selling flowers and other types of liberty such as free speech or intimate association can be treated differently in various ways. This doesn't mean ANYTHING GOES for either & both state and federal economic regulations are put to various tests with some bite.

Personal rights in certain ways involve economic rights so I think Prof. Dorf's "economic libertarian" phrasing is more the concern at hand. I don't think FN4 is the be all end all of what people should base judicial review on though "political participation" is not the only concern there anyhow.

Douglas argues that specific provisions only are truly protected with periphal rights protected too. Specific provisions are cited in that footnote. Also, Justice White flagged how the law was being unequally applied, burdening certain groups with less political protection. To the degree it was merely a morals law, it favors certain "religious" groups over others. Control of reproductive rights has been shown to be necessary for equal political liberty for women.

Anyway, the argument was that Lochner needed to be followed to make sense of Griswold. If marriage, e.g., is treated differently (given its private aspects, e.g.) than contracts and business, yes, the two can be separated. Anyway, no need to toss out the Lochner baby with the bathwater -- it isn't 100% wrong anyhow.

The "right to make an honest living" is a general statement I don't deny. Once you enter the public sphere, however, you have more state regulation. "Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large." Douglas understood the point too as seen, e.g., in his opinion in Lombard v. LA. Segregation of one's home and business, not same. Even there is still surely a fundamental personal right to the business in the first place.

And, in various ways, the economic field was determined to be more "public" than more personal things and open to regulation; in significant part, as noted by Sam, this was seen as essential to best protect the rights overall. OTOH, invading certain personal spheres would not advance liberty.

Evan Bernick said...

I find Harlan's analysis in Lochner unpersuasive, but at least he's engaging with the facts-- he simply comes to a different conclusion than the majority, which isn't surprising since he's adopting a presumption of constitutionality and they're not.

The question is not whether there is no distinction at all between, say, sexual intercourse and running a business, but whether those exercises of liberty ought to be treated differently under the law to the extent that they are at present.

"Regulating florists selling flowers and other types of liberty such as free speech or intimate association can be treated differently in various ways."

Sure. They are different activities. But they are equally exercises of constitutionally protected liberty-- and, under our current law, they are treated very, very differently.

"This doesn't mean ANYTHING GOES for either & both state and federal economic regulations are put to various tests with some bite."

Really? That's certainly not the rule of Lee Optical, and it's not the way that lower courts interpret the Supreme Court's rational basis jurisprudence. Read Judge Sutton's opinion in DeBoer for a good example of how the rational basis test tends to be applied (notice how he relies upon SCOTUS' deferential economic liberty cases). It's a toothless, truthless standard of review. Short of sheer lunacy, it is met. Again, government needs submit no evidence, and challenger needs to prove that no conceivable set of facts could sustain the statute. That's a tough task--proving an infinite set of negatives.

Judicial engagement posits that in every case, the government should have to demonstrate, with actual (admissible) evidence, that it is pursuing a legitimate, public-oriented end, not expressing a naked preference for a particular group. Black-letter rational basis law does not so require, and it never has.

Of course there is a public sphere and a private sphere-- that's a legitimate distinction. It's the bifurcation of rights and the subordination (disparagement if not denial)of rights that are as "fundamental" as any that the Court has recognized on a more or less ad hoc basis that's problematic and, I think, incoherent as a matter of political theory and as an approach to the act of judging, which is no more epistemologically problematic in the sphere of "economic liberty" than it is in other contexts, despite protestations about the dangers of second-guessing legislatures in the economic realm.

Was Griswold right? Sure. But for the reasons that Harlan articulated, not those of Douglas. We are talking about so many exercises of "liberty," which can be regulated, that is, made regular, to protect not only against force and fraud but unintentional rights violations (thus health and safety regulations)-- but the regulations require a reasoned, evidence-based justification. At present, that is not the law.

Samuel Rickless said...

Evan, libertarianism is a recipe for a perfect world. That may be why it is morally appealing. But we do not live in a perfect world. Capitalism, much as it permits the acquisition of great wealth (and all that comes with it) through personal effort and luck, when unregulated naturally (given human nature) results in exploitation. (Have you been to Bangladesh recently?) Exploitation involves taking unfair advantage of someone else's poor bargaining position, in many cases a position for which that person is not responsible. It is akin to, if not identical to, coercion. Libertarians who think that coercion is incompatible with meaningful exercise of the right to liberty should welcome treating exploitation similarly. (Notice that coercion does not make it impossible for you to exercise your right to liberty. It is not literally a form of imprisonment. In the standard case, a coercer threatens the coercee with a very undesirable outcome unless the coercee does something or other. But the coercee is free to choose the undesirable option. It's just that the choice being pushed on the coercee does not involve a meaningful exercise of the liberty right.)

Back to Lochner, then. It doesn't matter whether the bakers who lobbied for the maximum hours law were motivated by prejudice. It doesn't even matter that they were motivated by the concern that they would lose their jobs if overworked bakers from Eastern Europe were undercutting them. What matters is whether the economic system set up and protected by the government through the enforcement of law (including rules against coercion and fraud) should allow for exploitation, when the constitution protects liberty of contract and that liberty is fundamental. The answer is that it shouldn't.

The result of striking down maximum hour legislation is that there will be a race to the bottom, because the incentive to undercut by working longer and harder, including cutting corners with regard to health and safety, will always be there. Employers who have money (and so, power) in a loose labor market (and the market is always loose when it comes to jobs that require fewer skills) will be able to dictate wages, benefits, and other conditions of employment. If the government does not step in to prevent the race to the bottom, the result will be savage exploitation of the weak and the powerless.

Have you ever worked on a production line, Evan? I have. And I can tell you that even with all the government protection of workers that existed at the time that I was working, it was no walk in the park. Workers on my line who were ill were afraid of calling in sick for fear that they might lose their jobs. Workers who had to stand all day and engaged in repetitive motions suffered serious arm, shoulder, neck, back, knee, and foot injuries, many of them chronic. And you want to take us back to the time of the Triangle Shirtwaist Fire. For shame, really.

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