Randy Barnett is an excellent writer. He is, moreover, as many folks now realize, the intellectual father of the attacks on the the constitutionality of the Patient Protection and Affordable Care Act (popularly known, among its opponents at least, as Obamacare). Barnett is out with a new essay, Does the Constitution Protect Economic Liberty? (abstract here) in which he argues briefly and cogently that the answer is a resounding yes.
Beginning with the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”), amplified with judicious references to State constitutional ratifying debates, Barnett shows how economic liberty, along with personal liberty, was not far from the hearts of the Founding generation. Good stuff but nothing new.
Better is Barnett's deft analysis of the interplay among the Thirteenth Amendment (abolishing slavery), the Civil Rights Act of 1866, and the Fourteenth Amendment (protecting the privileges and immunities of citizens). He grounds his conclusion that with the Civil War Amendments the states too are prohibited from denying their citizens the benefits of economic liberty. Of course, Barnett acknowledges, the Supreme Court obtusely rejected what was obvious only five years later in The Slaughter House Cases and has never gotten things back on track.
Does all this mean in Barnett's view of the matter that there is no role of the states in regulating economic liberty or, more germane to my interests, contracts? No. Just as states may impose reasonable time, manner, and place restrictions even on freedom of speech, so too may they impose limits on contracts ("prescribing the manner of the exercise" of the right to contract).
All very invigorating to those bent in the libertarian direction but what about Art. I, Sec. 10, cl. 1 of the Constitution? (Which, as I'm sure everyone knows, provides that "no State shall ... pass any law ... impairing the obligation of contract.") Are we to understand by Barnett's elegant trail from the Ninth to the Fourteenth Amendments that since 1868 the states have had less power over contracts than they had for the preceding 80 years? Seems a bit of a stretch, if you ask me.
I have no doubt that the Supreme Court made a seriously wrong turn in The Slaughter House Cases; the Privileges and Immunities clause of the Fourteenth Amendment--and not Due Process or Equal Protection--was intended to protect our liberties from legislative overreach. And I also have no doubt the Thirteenth Amendment provided a constitutional basis for the Civil Rights Act of 1866. What I doubt is that the Fourteenth Amendment meant to protect (whatever exactly "protect" means) anything as broad "economic liberty."
All hat and no cowboy? No, I won't go that far but, as much as I'd like to conclude otherwise, I think Barnett has overshot the constitutional mark in this essay.
Beginning with the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”), amplified with judicious references to State constitutional ratifying debates, Barnett shows how economic liberty, along with personal liberty, was not far from the hearts of the Founding generation. Good stuff but nothing new.
Better is Barnett's deft analysis of the interplay among the Thirteenth Amendment (abolishing slavery), the Civil Rights Act of 1866, and the Fourteenth Amendment (protecting the privileges and immunities of citizens). He grounds his conclusion that with the Civil War Amendments the states too are prohibited from denying their citizens the benefits of economic liberty. Of course, Barnett acknowledges, the Supreme Court obtusely rejected what was obvious only five years later in The Slaughter House Cases and has never gotten things back on track.
Does all this mean in Barnett's view of the matter that there is no role of the states in regulating economic liberty or, more germane to my interests, contracts? No. Just as states may impose reasonable time, manner, and place restrictions even on freedom of speech, so too may they impose limits on contracts ("prescribing the manner of the exercise" of the right to contract).
All very invigorating to those bent in the libertarian direction but what about Art. I, Sec. 10, cl. 1 of the Constitution? (Which, as I'm sure everyone knows, provides that "no State shall ... pass any law ... impairing the obligation of contract.") Are we to understand by Barnett's elegant trail from the Ninth to the Fourteenth Amendments that since 1868 the states have had less power over contracts than they had for the preceding 80 years? Seems a bit of a stretch, if you ask me.
I have no doubt that the Supreme Court made a seriously wrong turn in The Slaughter House Cases; the Privileges and Immunities clause of the Fourteenth Amendment--and not Due Process or Equal Protection--was intended to protect our liberties from legislative overreach. And I also have no doubt the Thirteenth Amendment provided a constitutional basis for the Civil Rights Act of 1866. What I doubt is that the Fourteenth Amendment meant to protect (whatever exactly "protect" means) anything as broad "economic liberty."
All hat and no cowboy? No, I won't go that far but, as much as I'd like to conclude otherwise, I think Barnett has overshot the constitutional mark in this essay.
The famous yet maddening list of rights from Corfield v. Coryell, to which the framers of the 14th pointed repeatedly yet vaguely during floor debates, includes "the right to acquire and possess property of every kind...The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise...to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state..." Those are rights in the Corfield list that touch on economic matters. What makes the list maddening, tho', is that: 1. it's dictum, 2. it's open-ended, 3. it has repeated "reasonable regulation" qualifiers, and 4. it's demonstrably over-inclusive, as when it includes "the elective franchise." Maybe Justice B. Washington only meant that a former resident of State A cannot be permanently disenfranchised after he switches domicile to State B, but still, it seems to me he's prematurely listing a political ritht among civil rights, at a time when a sharp distinction was still made between these two types of rights. Nonetheless, Corfield is the most detailed ante-bellum gloss on Privileges and Immunities, and Rep. Bingham and Sen. Howard said to refer to it.
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