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Economic Liberty and The Slaughterhouse Cases

Are economic rights and liberties among the “privileges or immunities” of citizenship protected by the Constitution’s Fourteenth Amendment? That was the simple question before the Supreme Court in the Slaughterhouse Cases, the opinion which is today almost uniformly denounced in the legal academy. Scholars of all political and interpretive commitments have come to reject Slaughterhouse as among the Court’s ...

It’s Not Just the Unborn Being Denied Rights Under the Constitution

“The unborn person doesn’t have constitutional rights.”—Hillary Clinton, Meet the Press (April 3, 2016) When presidential candidate Hillary Clinton declares that unborn babies do not have constitutional rights, she’s not just spouting partisan rhetoric in the heated national debate over abortion. She’s providing us with a glimpse into an increasingly troubling mindset among government officials who ...

When the Supreme Court Stopped Economic Fascism in America

There was a time when the Supreme Court of the United States defended and upheld the constitutional protections for economic liberty in America. This year marks the 80th anniversary of one of the Supreme Court’s finest hours, when it overturned Franklin Roosevelt’s agenda for economic fascism in the United States. The trend towards bigger and ever-more-intrusive government, unfortunately, was not ...

The Supreme Court’s Dreadful Record on Freedom

The Supreme Court heard oral arguments on the legality of the Affordable Care Act this past March. Several justices questioned whether a ruling against Obamacare would be “unconstitutionally coercive” to state governments that did not create health-care exchanges. The Supreme Court is sometimes hypersensitive about the authority of state governments when federalism issues are raised. But at the same ...

Uniting Constitutional Protection for Economic and Social Liberties, Part 3: Can the Ninth Amendment Save Us?

In part 2 of this series (December), I argued that unenumerated noneconomic rights such as those of parents or the right to marry are generally considered “fundamental rights” under the approach libertarian legal scholar Randy Barnett labels “Footnote Four-Plus.” That is, the rights of parents are nowhere enumerated in the Constitution including the Bill of Rights, but are nonetheless ...

Uniting Constitutional Protection for Economic and Social Liberties, Part 2: The Great Depression and the Great Divide

Part 1 | Part 2 | Part 3 In part 1, I traced the evolution of “substantive due process” jurisprudence under which the Supreme Court protected a variety of unenumerated rights, both economic and personal, through the Due Process Clause of the Fifth and Fourteenth Amendments. Many of the unenumerated rights that had been protected ...