Does the Constitution Protect Economic Liberty?

9 Pages Posted: 13 Mar 2012

Date Written: March, 13 2012


The author defends the proposition that the Court in Lochner v. New York was right to protect the liberty of contract under the Fourteenth Amendment. He does not defend its use of the Due Process Clause to reach its result. As he explains, the Court should have been applying the Privileges or Immunities Clause. Nor does he contend that the Court was correct in its conclusion that the maximum hours law under consideration was an unconstitutional restriction on the liberty of contract. Although the statute may well have been unconstitutional, the author does not take the time to evaluate that claim.

Instead, this article focuses on whether the Constitution of the United States protects economic liberty. To clarify the issue, the author begins by defining “economic liberty” 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 protects rights of private property and contract is overwhelming.

Keywords: Lochner v. New York, economic liberty, constitutional law

JEL Classification: K10, K12, K3

Suggested Citation

Barnett, Randy E., Does the Constitution Protect Economic Liberty? (March, 13 2012). Harvard Journal of Law and Public Policy, Vol. 35, 2012, Georgetown Public Law Research Paper No. 12-033, Georgetown Law and Economics Research Paper No. 12-011, Available at SSRN:

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)


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