Rediscovering Liberty of Contract: The Unnoticed Economic Right Contained in the Freedom of Speech
31 Pages Posted: 26 Jul 2016
Date Written: 2016
The Free Speech Clause of the First Amendment protects — and therefore, the U.S. Supreme Court should recognize and enforce — the liberty to form a contract, balanced against the right of the states, under their historic police powers, and the U.S. Congress, under its enumerated legislative powers, to prohibit and punish the formation of contracts that are contrary to a sufficiently important public policy.
This article demonstrates that the liberty to form a contract is secured by the text of the First Amendment, is implicit in the U.S. Supreme Court’s commercial speech jurisprudence, is justified by reference to originalist and traditionalist theory, and finds the most appropriate textual vehicle in the First Amendment. Moreover, recognizing a federal contract freedom would solve a historical and constitutional paradox — the fact that contract freedom, while fundamental to the Framers of the Constitution, currently receives no legal protection from the Court.
No court has ever recognized such a right in the First Amendment, and no scholar has ever proposed its recognition. Yet my proposal sounds strange, and is strange, because after West Coast Hotel — and especially after Lee Optical — it has become a veritable article of faith to modern theorists that Lochner was totally, irredeemably wrong. Because we moderns start with the baseline assumption that “liberty of contract” cannot be in the Constitution, our natural inclination is to think that the Free Speech Clause could not possibly protect a liberty of contract formation. But this inclination is in tension with certain historical and constitutional facts.
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