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Does the Constitution Protect Economic Liberty

TL;DR: The evidence that the Constitution protects rights of private property and contract under the Fourteenth Amendment is overwhelming as discussed by the authors, and it is clear that the Court in Lochner v. New York was correct in its conclusion that the maximum hours law under consideration was an unconstitutional restriction on the liberty of contract.
Abstract: 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.
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01 Jan 2017
TL;DR: In the preface of the Philosophy of Right, this paper, the author argues that private property is a rational necessity for human freedom and that the state must conscientiously choose to allow broad discretion for the acquisition, use, and alienation of property.
Abstract: right are fully socialized by their family, civil society, and the state in order to prepare them for property ownership. When the state secures the property right through the establishment of institutions which codify the rights, define it, and punish those who violate it, it is bound by a certain logic: only private property creates free individuals, and persons are free to the extent they can exchange property in accord with rational desire. These free individuals in turn perpetuate the institution of private property by owning and exchanging property on the terms established by abstract right, which promotes the development of persons by permitting them to freely exercise their will upon the internal and external world. Because of the importance of property for personhood, the state must conscientiously choose to allow broad discretion for the acquisition, use, and alienation of property. Reading Philosophy of Right In the preface of Philosophy of Right, Hegel writes that “each individual is in any case a child of his time; thus philosophy, too, is its own time comprehended in thoughts.” As Jeremy Waldron notes, Hegel’s theory of private property the result of its status as an institution in his era, and he sought to discover what was rational about the institution and whether it contributed to human freedom. “[I]f we are led to agree with Hegel that private property is a rational necessity, then we will be inclined to give a positive evaluation of some features of society...([such as] those that represent a progressive tendency towards private ownership) and a negative evaluation...of others.” By seeking “standards of rationality within existing systems of thought and forms of life”, Hegel engages in a critique of private property as the apotheosis of freedom in the 1800s. To that extent, Joachim Ritter writes that it is important to understand that Hegel, despite

46 citations

Posted Content
TL;DR: In this article, the authors discuss the constitutional tenets of the European Monetary Union and conclude that despite the importance of the national element for the success of the constitutional endeavour, the EMU seems prima facie unable to become a constitutional entity.
Abstract: This paper discusses the constitutional tenets of the European Monetary Union. The analysis draws upon an understanding of constitutionalism as the legal and political arrangement that lends coherence to the social body and ties it to the entity to which it belongs, thus creating social consensus. Given the importance of the national element for the success of the constitutional endeavour, the paper argues that the EMU seems prima facie unable to become a constitutional entity. However, as the European Union has gradually come to approximate the nation state, the EMU can be seen as a constitutionalism-capable entity. The paper concludes that, despite this possibility, the current workings of the EU institutions block the transformation of the EMU into a politically integrated constitutional order.

2 citations

Posted Content
TL;DR: Mayer as mentioned in this paper argued that the Court, during the Lochner era, was protecting liberty of contract as a fundamental right rather than enacting laissez-faire constitutionalism as Justice Holmes and his intellectual heirs supposed.
Abstract: Given the resilience of the opposition to the liberty of contract jurisprudence, a doctrine that is epitomized by Lochner, and given the insistent dedication of scholars and jurists to a largely mistaken understanding of economic substantive due process argumentation, it is an appropriate time to review David Mayer’s contribution to the literature surrounding Lochner. In his new book, “Liberty Of Contract: Rediscovering A Lost Constitutional Right”, Mayer rightly contends that the Court, during the Lochner era, was protecting liberty of contract as a fundamental right rather than enacting laissez-faire constitutionalism as Justice Holmes and his intellectual heirs supposed. Building upon Professor Sawyer’s exposition of Hammer and its origins in the mind of one of America’s most influential legal theorists, Philander Knox, I offer a contrasting conception of the Lochner Court. This conception implies that the Supreme Court’s decision making during the Lochner era corresponds with the Court and the nation’s capitulation to progressive values. Given Sawyer’s analysis, I argue that Mayer’s bracing defense of liberty of contract jurisprudence is diminished by analytical gaps that fail to satisfactorily account for the history and potency of the social, cultural and quasi-scientific currents permeating the nation before, during and after the onset of the Lochner era. This Article shows, notwithstanding the elegance of liberty of contract jurisprudence, that the emergence of today’s welfare state resembling a dystopian reality that richly manifests itself in legions of “one percenters,” who insist on occupying America’s capital city, was an unfortunate, but predictable, outcome. Finally, I contend that until citizens, politicians and judges display modesty about the nation’s capacity to solve the human problem and immodesty about an individual’s right and responsibility to solve her own difficulties in voluntary communion with others, it remains doubtful that the rediscovery of liberty of contract as a lost constitutional right can become anything but an attractive anachronism.

1 citations

References
More filters
01 Jan 2017
TL;DR: In the preface of the Philosophy of Right, this paper, the author argues that private property is a rational necessity for human freedom and that the state must conscientiously choose to allow broad discretion for the acquisition, use, and alienation of property.
Abstract: right are fully socialized by their family, civil society, and the state in order to prepare them for property ownership. When the state secures the property right through the establishment of institutions which codify the rights, define it, and punish those who violate it, it is bound by a certain logic: only private property creates free individuals, and persons are free to the extent they can exchange property in accord with rational desire. These free individuals in turn perpetuate the institution of private property by owning and exchanging property on the terms established by abstract right, which promotes the development of persons by permitting them to freely exercise their will upon the internal and external world. Because of the importance of property for personhood, the state must conscientiously choose to allow broad discretion for the acquisition, use, and alienation of property. Reading Philosophy of Right In the preface of Philosophy of Right, Hegel writes that “each individual is in any case a child of his time; thus philosophy, too, is its own time comprehended in thoughts.” As Jeremy Waldron notes, Hegel’s theory of private property the result of its status as an institution in his era, and he sought to discover what was rational about the institution and whether it contributed to human freedom. “[I]f we are led to agree with Hegel that private property is a rational necessity, then we will be inclined to give a positive evaluation of some features of society...([such as] those that represent a progressive tendency towards private ownership) and a negative evaluation...of others.” By seeking “standards of rationality within existing systems of thought and forms of life”, Hegel engages in a critique of private property as the apotheosis of freedom in the 1800s. To that extent, Joachim Ritter writes that it is important to understand that Hegel, despite

46 citations

Posted Content
TL;DR: In this article, the authors discuss the constitutional tenets of the European Monetary Union and conclude that despite the importance of the national element for the success of the constitutional endeavour, the EMU seems prima facie unable to become a constitutional entity.
Abstract: This paper discusses the constitutional tenets of the European Monetary Union. The analysis draws upon an understanding of constitutionalism as the legal and political arrangement that lends coherence to the social body and ties it to the entity to which it belongs, thus creating social consensus. Given the importance of the national element for the success of the constitutional endeavour, the paper argues that the EMU seems prima facie unable to become a constitutional entity. However, as the European Union has gradually come to approximate the nation state, the EMU can be seen as a constitutionalism-capable entity. The paper concludes that, despite this possibility, the current workings of the EU institutions block the transformation of the EMU into a politically integrated constitutional order.

2 citations

Posted Content
TL;DR: Mayer as mentioned in this paper argued that the Court, during the Lochner era, was protecting liberty of contract as a fundamental right rather than enacting laissez-faire constitutionalism as Justice Holmes and his intellectual heirs supposed.
Abstract: Given the resilience of the opposition to the liberty of contract jurisprudence, a doctrine that is epitomized by Lochner, and given the insistent dedication of scholars and jurists to a largely mistaken understanding of economic substantive due process argumentation, it is an appropriate time to review David Mayer’s contribution to the literature surrounding Lochner. In his new book, “Liberty Of Contract: Rediscovering A Lost Constitutional Right”, Mayer rightly contends that the Court, during the Lochner era, was protecting liberty of contract as a fundamental right rather than enacting laissez-faire constitutionalism as Justice Holmes and his intellectual heirs supposed. Building upon Professor Sawyer’s exposition of Hammer and its origins in the mind of one of America’s most influential legal theorists, Philander Knox, I offer a contrasting conception of the Lochner Court. This conception implies that the Supreme Court’s decision making during the Lochner era corresponds with the Court and the nation’s capitulation to progressive values. Given Sawyer’s analysis, I argue that Mayer’s bracing defense of liberty of contract jurisprudence is diminished by analytical gaps that fail to satisfactorily account for the history and potency of the social, cultural and quasi-scientific currents permeating the nation before, during and after the onset of the Lochner era. This Article shows, notwithstanding the elegance of liberty of contract jurisprudence, that the emergence of today’s welfare state resembling a dystopian reality that richly manifests itself in legions of “one percenters,” who insist on occupying America’s capital city, was an unfortunate, but predictable, outcome. Finally, I contend that until citizens, politicians and judges display modesty about the nation’s capacity to solve the human problem and immodesty about an individual’s right and responsibility to solve her own difficulties in voluntary communion with others, it remains doubtful that the rediscovery of liberty of contract as a lost constitutional right can become anything but an attractive anachronism.

1 citations