Economic Liberties and the Constitution
Leef, George C., Freeman
Economic Liberties and the Constitution by Bernard H. Siegan Transaction Publishers * 2005 * 419 pages * $49.95 hardcover; $29.95 paperback
Reviewed by George C. Leef
One of the books I most often refer to is the original edition of Economic Liberties and the Constitution, published in 1980. When I bought it I was just a few years out of law school, and I remember thinking, "I wish I had been able to take some courses from Professor Siegan."What he had written was a ringing defense of the proposition that economic liberties-property rights, freedom of contract, and the right to engage freely in peaceful occupations and commerce-are every bit as important under the Constitution as are "civil" liberties. As a student I had learned about the Supreme Court's demolition of constitutional protections for economic liberties and read some sharp criticism of the decisions in which the Court had determined that economic liberties weren't important enough to shelter from meddlesome legislatures. What Siegan's book did was to put the entire controversy into clear legal and historical perspective.
Last year Professor Siegan, who taught at the University of San Diego School of Law until his death this past March, undertook a revision and expansion of the book. He added several chapters dealing with changes since 1980; there have been many important court decisions since then. Some decisions are good, and some are quite bad, such as KeIo v. New London. Siegan also added commentary on changes in the world since the first edition was published, particularly the collapse of communism. The new edition thus gives the reader a more comprehensive view of the importance of economic liberties to progress and prosperity.
The core of both editions is Siegan's excellent analysis of the Constitution's intended protection for private property, freedom of contract, the right to enter into a trade or business, and other aspects of economic freedom. He demonstrates that our common-law heritage kept the state from interfering in those areas of life and that the Constitution was written with a view toward shielding them from the anticipated attacks by interest groups through legislation. If you have ever wondered how we got from the almost unbounded economic liberty of the early United States to the highly regulated conditions we have today, this book explains the transformation.
Madison was right that the evils of faction would lead to the erosion of liberty if it were allowed to go unchecked. In the nineteenth century, judges often blocked legislation (mostly at the state level) that deprived owners of their common-law rights, although there were some notable breaks in the dike. It was in the twentieth century that "progressive" judges decided that Congress and state legislatures should be given a free hand to deal with the socioeconomic problems of the time. …