Title: Does the Constitution Protect Economic Liberty
Abstract: It is my job to defend proposition that Court in Lochner v. New York (1) was right to protect liberty of contract under Fourteenth Amendment. I will not be defending its use of Due Process Clause (2) to reach its result. As I shall explain, Court should have been applying Privileges or Immunities Clause. (3) Nor will I be contending that Court was correct in its conclusion that maximum-hours law under consideration was an unconstitutional restriction on liberty of contract. (4) Although statute may well have been unconstitutional, I will not take time to evaluate that claim. Instead, I want to focus on whether Constitution of United States protects To clarify issue, let me begin by defining economic liberty. I define liberty as right to acquire, use, and possess private property and right to enter into private contracts of one's choosing. If Constitution protects these then Constitution does protect evidence that Constitution protects of private property and contract is overwhelming. Let us begin with constitutional protection afforded liberty at national level. Ninth Amendment reads, The enumeration in Constitution, of certain shall not be construed to deny or disparage others by people. (5) But what were these retained by people? evidence shows that this was a reference to Consider an amendment drafted by Roger Sherman, who served with James Madison on House Select Committee to draft Bill of Rights. (6) Sherman's second amendment begins as follows: The have certain which are by them when they enter into Society.... (7) In this passage, Sherman uses all terminology committee eventually employed in Ninth Amendment--the people, rights, and retained--and rights retained by the people are then explicitly characterized as natural rights. But what was meant by term natural rights? Sherman's draft provides some examples: Such are 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) protection of property is at heart of this list. Sherman's rendition of was entirely commonplace. Consider some other examples. Another amendment proposed in Senate reads: That there are certain of which men, when they form a social compact, cannot deprive or divest their posterity; among which are enjoyment of life and liberty, with means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and (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 are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned 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, 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 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. …
Publication Year: 2012
Publication Date: 2012-01-01
Language: en
Type: article
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Cited By Count: 1
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