At Dorf on Law, Michael Dorf: How Biased Towards Libertarianism is the US Constitution? Here is an excerpt:
My latest Verdict column [Ed.: titled Economic Liberty Never Really Died] discusses a recent Harvard Law Review essay by Suzanna Sherry, in which she reviews Richard Epstein’s book, The Classical Liberal Constitution. Sherry says (correctly) that Epstein defends a view of economic rights as no less fundamental than “personal” rights such as contraception, abortion, and marriage. She also says that liberal progressives have failed to respond adequately to the argument by offering a full-throated defense of personal liberty that excludes Lochnerian economic liberty. I argue that this charge is unfair. I point to constitutional theories by the likes of John Hart Ely and Jim Fleming that draw just this distinction. I might have pointed to any number of others. Indeed, it is practically a cliche that liberal constitutional theory of the last four-plus decades has been obsessed with distinguishing Roe from Lochner.
The main point of my column is not, however, to defend liberal constitutional scholars against Professor Sherry. My chief aim is to examine an unspoken premise that she and Epstein share: namely, that implementing economic libertarianism in the name of the Constitution would require a substantial change to our existing constitutional regime. I challenge this assumption in two ways. I note that: (1) while the SCOTUS has not accepted the invitation of the economic libertarians to revive Lochner as a matter of substantive due process, the Court has in fact been very friendly to the deregulatory agenda of economic conservatives while using other doctrines; and (2) the main contribution of the American Constitution to economic libertarianism comes not from judicial enforcement of the Constitution or courts more generally, but from the hard-wired features of the U.S. Constitution—its multiple “veto players”—that tend to stymie efforts to adopt progressive policies.
Posted at 6:47 AM