The Constitution and Economic Liberty

15 Pages Posted: 27 Apr 2011 Last revised: 25 Jan 2018

See all articles by James W. Ely

James W. Ely

Vanderbilt University - Law School

Date Written: 2011


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.

Keywords: Laissez-Faire, Oliver Wendell Holmes, Property Rights, Charles A. Beard, Civic Republicanism, Adam Smith, Free Markets, Contracts, Lochner v. New York, Constitution, Economic Liberty

Suggested Citation

Ely, James W., The Constitution and Economic Liberty (2011). 35 Harvard Journal of Law and Public Policy, 27 (2012), Vanderbilt Public Law Research Paper No. 11-19, Vanderbilt Law and Economics Research Paper No. 11-22, Available at SSRN:

James W. Ely (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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