Section I of this Article presents a positive account of the Constitution based on descriptive claims that I hope are relatively uncontroversial. It is positive in this sense: it provides an explanation of the Constitution in terms of the purposes that would have led reasonable drafters to produce it. As the topic of this symposium is the constitutional protection of economic liberty, I ask how a reasonable group of drafters, at the time the Constitution's provisions were written, could have adopted those provisions in order to foster a free economy. That produces an account of how the Constitution was designed to ensure economic freedom. The dominating theme is that the Constitution does so without taking the most obvious and direct step in that direction, which would be to provide the basic private rights that together constitute economic liberty. Instead, at a number of important points, the Constitution takes those rights for granted, as already existing under state law, and reinforces them without simply determining their content. Section II is interpretive, making claims about the meaning of the Constitution. It takes issue with Professor Siegan, arguing that the Constitution gives economic interests hardly any protection in the form that we associate with guarantees of individuals rights. This section defends the position that the Constitution does not itself provide the legal rules that establish private rights to property and contract, nor does it strongly constrain what the states and Congress may do when they create, change, and regulate those rights. Section II focuses mainly on the Privileges or Immunities Clause of the Fourteenth Amendment, in which Professor Siegan found powerful constitutional safeguards for economic freedom, and maintains that the Clause operates indirectly, by requiring equality among citizens, and not directly on the substance of state private law. Section III is historical and normative. It uses the country's history under the Constitution to approach the question whether it would be desirable for the Constitution to protect economic liberty more directly, or, if one agrees with Professor Siegan, whether it is desirable for the Constitution to protect economic liberty in the direct manner it does. I give some reasons to believe that it would not be.
The Constitution of Economic Liberty,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol45/iss3/6