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Today we are accustomed to such arguments in the context of public debates over civil rights. Less familiar, however, is the central role that economic rights and liberties played in the definition — and the original application — of the concepts and terms at the heart of the 14 th Amendment.
I define economic lib‐erty as the right to acquire, use, and possess private property and the right to enter into private contracts of one’s choosing. If the Constitution protects these rights, then the Constitution does protect economic liberty. The evidence that the Constitution pro‐tects rights of private property and contract is ...
- Randy E Barnett
- 2012
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- Contributors
- The Supreme Court’S Decision in Lochner v. New York
- The Backlash Against Lochner
- The Backlash Against The Backlash Against Lochner
- The Situation Today and Going Forward
- Conclusion
- David E. Bernstein
- Progressives’ Claims vs. Reality
- Adopting The Rhetoric of Progressivism
- Rebuilding Limited-Government Constitutionalism
Paul J. Larkin, Jr., is a Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. David E. Bernstein is George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia. Randy E. Barnett is Carmack Waterhouse Professor of Legal Theory at th...
At issue in Lochner was the constitutionality of the New York Bakeshop Act of 1895. Passed late in the 19th century and motivated by the Progressive Era interest in advancing the secular welfare of mankind through government intervention, the statute ostensibly sought to improve the health and welfare of members of the baking industry by limiting t...
The orthodox trope is that Lochner is an example of the Supreme Court’s willfully usurping the role of the political branches in our government. Justice Oliver Wendell Holmes was right in his dissent, the argument goes, to criticize the majority for choosing one disputed theory of economics over another. In rejecting the maximum-hours component of ...
Recently, there has been a renewed interest in the question whether the Constitution protects individual economic activity without undue—some might say any—government regulation or interference. Various scholars have bemoaned the Supreme Court’s disdainful treatment of economic freedoms and its single-minded focus on one or another variation of the...
The renewed interest in constitutional protection for economic liberty by certain members of the academy and conservative public interest organizations will ensure that there will be continued scholarship and litigation in this field.The result is that there will continue to be disputes over the constitutionality of such regulatory régimes for the ...
For nearly 80 years, Lochnerhas been a punch line for academics who see constitutional protection for economic rights as an impediment to—take your choice—redistribution of wealth or protecting the working and underclasses. Throughout that period, the Supreme Court has endorsed that view of constitutional law. Lying just beyond the horizon, however...
Resistance in various legal circles to any sort of constitutional protection of economic liberties has arisen in part because judicial protection of economic rights is associated with the infamous 1905 Supreme Court case of Lochner v. New York. In Lochner, the Court held that a law banning bakery owners from employing workers more than 10 hours a d...
Contrary to the claims of Progressive critics, the Court emphatically was not trying to impose laissez-faire on the country. In a wide range of cases decided during the so-called Lochner era, the Court gave rather broad scope to the state’s “police power” to regulate the economy. Indeed, of the dozen or so laws that came before the Court that regul...
Nevertheless, while conservatives nowadays tend to define themselves in part in opposition to a Progressivism stretching back to the early 20th century, an earlier generation of conservative jurists adopted the Progressives’ distortion of Lochneras their own. The diminishing group of old-school Progressives in the 1950s and ’60s who opposed Warren ...
More recently, modern conservative and libertarian thinkers, especially the originalists among them, have taken great strides toward rebuilding traditional limited-government conservative constitutionalism.Part of that progress has involved recapturing some of the wisdom of pre–New Deal constitutional doctrine. The implications of their work have a...
views 2,707,140 updated. ECONOMIC LIBERTIES AND THE CONSTITUTION. Contrary to its existing practice, the United States Supreme Court was once a strong guarantor of economic liberties. This was the period (1897–1937) of "economic due process."
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of economic and political agents".
Economics. 855. Members in this Collection. About this Collection. Classic works in the discipline are joined by explorations of how economic reasoning applies to political science and other social sciences, as well as the relevance of economics as moral philosophy.
Economic liberalism is based on the principles of personal liberty, private property, and limited government interference. The term ‘liberalism’ should be understood in its historical context. Classical liberalism emphasized liberty from government regulation.
