The Attorney General's Lawyer: Inside the Meese Justice Department

By Douglas W. Kmiec | Go to book overview
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5
Work: Securing Economic Liberty

Constitutional argumentation sometimes tends toward the abstract. Were I to extol the importance of economic liberty, few would disagree, but few would be very excited either. Only when it is understood that the economic liberties secured under the Constitution have a significant impact on matters very close to home--literally--do we have our attentions focused.

Take the cost of a family home. When President Reagan took office, it was after a decade in which the cost of housing rose dramatically-- approximately 176 percent. 1 Now, not all of this increase was attributable to government regulation, but a fair share was. A presidential commission found: "[e]xcessive regulation raises housing costs by restricting available land, imposing unnecessary requirements in site development and construction standards, and lengthening the time needed to obtain regulatory permits.... Although the cumulative effect cannot be precisely determined, all the studies have a common finding: regulations increase costs--as much as 25 percent of the selling price in some cases."2 Is all this costly regulation necessary? More relevantly for present purposes, is all of it constitutionally authorized?

Economic liberty also affects whether one can open a new business and whether, once that business is operating, contracts can be entered into with the reasonable expectation that they will not be supplanted by public regulation. If, for example, government can change the rules at any time for buying and selling widgets, and those rule changes can be retroactively applied to existing businesses and contracts, few of us would ever be willing to risk our life savings in the widget business.

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