Does the Constitution Protect Economic Liberty?

By Barnett, Randy E. | Harvard Journal of Law & Public Policy, Winter 2012 | Go to article overview

Does the Constitution Protect Economic Liberty?


Barnett, Randy E., Harvard Journal of Law & Public Policy


It is my job to defend the proposition that the Court in Lochner v. New York (1) was right to protect the liberty of contract under the Fourteenth Amendment. I will not be defending its use of the Due Process Clause (2) to reach its result. As I shall explain, the Court should have been applying the Privileges or Immunities Clause. (3) Nor will I be contending that the Court was correct in its conclusion that the maximum-hours law under consideration was an unconstitutional restriction on the liberty of contract. (4) Although the statute may well have been unconstitutional, I will not take the time to evaluate that claim.

Instead, I want to focus on whether the Constitution of the United States protects economic liberty. To clarify the issue, let me begin by defining "economic liberty." I define 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.

Let us begin with the constitutional protection afforded economic liberty at the national level. The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (5) But what were these "other" rights "retained" by the people? The evidence shows that this was a reference to natural rights.

Consider an amendment drafted by Roger Sherman, who served with James Madison on the House Select Committee to draft the Bill of Rights. (6) Sherman's second amendment begins as follows: "The people have certain natural rights which are retained by them when they enter into Society...." (7) In this passage, Sherman uses all the terminology the committee eventually employed in the Ninth Amendment--"the people," "rights," and "retained"--and the "rights" "retained" by "the people" are then explicitly characterized as "natural rights."

But what was meant by the term "natural rights"? Sherman's draft provides some examples: "Such are the rights of Conscience in matters of religion; of acquiring property and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances." (8) The protection of property is at the heart of this list.

Sherman's rendition of natural rights was entirely commonplace. Consider some other examples. Another amendment proposed in the Senate reads: "That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety." (9) Similar provisions were proposed by state ratification conventions. Virginia offered an identical amendment as its first proposed amendment. (10)

Many state constitutions contained similar language. Massachusetts: "All people are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." (11) New Hampshire: "All men have certain natural, essential, and inherent rights--among which are, the enjoying and defending life and liberty; acquiring, possessing and protecting property; and, in a word, of seeking and obtaining happiness." (12) Pennsylvania: "All men are born equally free and independent, and have certain natural, inherent and inalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining happiness and safety. …

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