Does the Constitution Protect Economic Liberty?
Randy E. Barnett
Georgetown University Law Center
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
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.
Number of Pages in PDF File: 9
Keywords: Lochner v. New York, economic liberty, constitutional law
JEL Classification: K10, K12, K3
Date posted: March 13, 2012