Stephen Matthew Feldman (University of Wyoming – College of Law) has posted Is the Constitution Laissez-Faire? The Framers, Original Meaning, and the Market (81 Brooklyn Law Review 1 (2015)) on SSRN. Here is the abstract:
Did the Constitution create a laissez-faire government-market system? This question is crucial to constitutional jurisprudence today. Conservatives often assert that originalism is the best (or only) method of legitimate constitutional interpretation. Originalism supposedly requires judges to uphold either the original public meaning of the Constitution or the Framers' intentions. On the Roberts Court, Justices Scalia and Thomas are avowed originalists, though the other conservative Justices are not averse to invoking originalist arguments or joining originalist opinions. Empirical studies show that the Roberts Court, because of its conservatives, is the most pro-business Court since World War II. Both of these judicial characteristics – originalism and a pro-business orientation — were on display in Citizens United v. FEC. In a five-to-four decision, the conservative bloc invalidated statutory limits on corporate (and union) spending for political campaign advertisements. The majority opinion concluded with an originalist flourish: "There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations." Citizens United is not unique. In case after case, the conservative Justices act like market fundamentalists, protecting corporations and the marketplace from government regulations even in free-expression cases like Citizen United.
(Note: the article is principally a response to Richard Epstein's The Classical Liberal Constitution. The Citizens United point seems mostly a non sequitur, as the question of political speech by people organized as a corporate nonprofit would appear to be unrelated to whether one is "laissez-faire" in economic policy. But framed as a response to Epstein it's an interesting inquiry).
Posted at 6:04 AM