Property and Principle: A Review Essay on Bernard H. Siegan’s Economic Liberties and the Constitution


Economic Liberties and the Constitution, by Bernard H. Siegan. Chicago: University of Chicago Press, 1980. 383 pp. First edition available used; 2nd edition (2005) not recommended.

When the U.S. Supreme Court held last year that the Constitution’s “public use” limitation on the power of eminent domain would not restrain a municipality from taking the property of one citizen for the purpose of having it “redeveloped” as the private property of another, Justice Clarence Thomas dissented, noting: “Something has gone seriously awry with this Court’s interpretation of the Constitution.”1 Most people apparently agree: Public outcry has been so strong that eminent domain reform legislation has been enacted or proposed in more than forty states.2

 

Most close observers of the Court, however, were not so surprised by the outcome of Kelo vs. New London as by the triumphant fact that Kelo’s attorneys garnered four Justices in dissent. As the Court explained, its decision was dictated by a “longstanding policy of deference to legislative judgments” about what constitutes the right to private property.3 In a less heralded property rights case argued the same day as Kelo, the Court unanimously deemed “it remarkable, to say the least,” to believe that a rent control law should be overturned, since it would require “courts to substitute their . . . judgments for those of elected legislatures and expert agencies.”4

Despite joining the decision in the second case, Justice Thomas maintained in Kelo that “there is no justification . . . for affording almost insurmountable deference to legislative conclusions” about the constitutionality of confiscating private property.5 In reaching that conclusion he echoed the theme of Economic Liberties and the Constitution, an important book by the late University of San Diego School of Law Professor Bernard H. Siegan, published in 1980. The book is part legal history, part constitutional analysis, and part broadside against a false notion of “judicial restraint,” by which the federal judiciary has “abandoned judicial review of economic and social legislation, review which it had carried out during much of its existence.” The original edition is out of print but still widely available.6

The reader of Economic Liberties is shown that Kelo fits a nearly unbroken pattern of judgments regarding economic liberties cases since 1934. Consider Hawaii vs. Midkiff, the 1981 case previously the last word on eminent domain and on which Kelo relied: The court “made clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use,”7 justifying the taking of private property. Midkiff’s 8-1 majority stood on the more general principle that “[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their [independent judgment].”8 The same idea was present in Berman vs. Parker, a 1954 case discussed by Siegan that both Midkiff and Kelo cite as precedent. The Court permitted a department store to be taken by eminent domain and redeveloped by a new private owner, as part of a larger government-sponsored project of “slum clearance,” stating:

[W]hen the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation. . . .

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.9

This sweeping assertion helps explain the confident militancy with which legislative and executive officials intrude everywhere into our private lives today. It is apparent, however, that the courts have not fully abdicated. Some issues do not square with its announced policy of humility. The same Justice William Douglas who found no authority to uphold the public use limitation in Berman later declared a right of privacy, which still today justifies the Court standing between religionist majorities and a woman’s right to an abortion. The Court also largely ignores the supposed wisdom of the legislative and executive branches when they seek to stifle the press. And, at times, the Court closely scrutinizes allegations of governmental misconduct, for instance, with respect to procedural guarantees in criminal trials.

That dichotomy is the subject of Economic Liberties. As an observer of the modern court, Siegan asks by what legal steps the “longstanding policy” arose, and whether it has any legitimate support. His perspective is not revolutionary; he merely accepts earnestly the premise that the protection of private property is among the basic objectives of the Constitution. Siegan’s conclusion is that “there is no constitutional basis for the federal courts discriminating against economic liberties” and that the Supreme Court’s present treatment of economic liberties has utterly destroyed the separation of powers mandated by the Constitution.

On that premise, he advances a uniform standard of judicial review, which he believes would restore the separation of powers to our government. In essence he advocates the return of 19th- and early 20th-century judicial doctrines reflecting the unity of rights, by which the Supreme Court previously guarded economic liberties. This “will not restore laissez-faire to our economy,” he writes, “but at least we should expect reduction of legislative and administrative excesses and abuses. This is an outcome not to be minimized. The rewards of liberty are vast and unpredictable.”10 And Siegan does not shrink from the conclusion that his proposal would necessitate judicial abrogation of most of the agencies, programs, and laws that constitute the regulatory state.

He introduces the status of economic liberties today by way of a 1976 Supreme Court case, typical of hundreds of federal cases since, which upheld a prohibition against operating unlicensed pushcarts in the French Quarter of New Orleans. Over the course of several chapters Siegan identifies and discusses the constitutional provisions that might have been relied on in earlier periods to overturn the law. The reader is thereby introduced to the history of constitutional protections for property rights, such as the “contracts clause” and the 14th Amendment’s “privileges or immunities” clause, including a review of the cases in which these protections were effectively extinguished. This is an instance of one of the book’s chief values: it saves the reader from surveying the vast legal territory over which property rights were assaulted by marking where the bodies are buried. The contours of Siegan’s map do not differ from some other, more recently published legal histories,11 but the controversial bulk of Economic Liberties is dedicated to rehabilitating a legal doctrine that is nearly universally reviled today: “economic due process.”

From the earliest days of the common law, the language of “due process” has referred to a type of guarantee restraining arbitrary government action against the rights of individuals. “Substantive due process” refers to a particular perspective on the Due Process clauses of the 5th and 14th Amendments, which read that neither the federal nor the state governments “shall deprive any person of life, liberty, or property, without due process of law.” In assessing the meaning of the words “due process,” judges influenced by the doctrine adopted the view that since some deprivations of life, liberty, or property are inconsistent with the very purpose of government, they are in some sense arbitrary. Statutes aimed at a forbidden objective were deemed, in a loose manner of speaking, outside the context of the principle of due process, and could not be sustained as consistent with its guarantee. According to a once dominant judicial philosophy, such legislative acts were not legitimate law but mere acts of force wielded at the behest of majority vote.

In the 1874 case of Loan Association vs. Topeka,12 for instance, the U.S. Supreme Court wrote that “There are . . . rights in every free government beyond the control of the State.”

To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law. . . . This is not legislation. It is a decree under legislative forms.13

The legal doctrine of “substantive due process” embodied the idea that laws violating certain pre-political, moral rights, which establish the purposes of government, may not be upheld, regardless of whether they were enacted with all the technical legal procedures in place. “Economic due process” refers to the doctrine of substantive due process applied to economic liberties cases.14

In Allegeyer vs. Louisiana, for instance, a law prohibiting people from purchasing insurance on property in the state of Louisiana from out-of-state companies was voided by the Supreme Court. It explained that a statute may not deprive individuals of their right to contract for otherwise lawful services, which is an aspect of economic liberty:

The liberty mentioned in [the 14th Amendment] . . . is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.15

As Siegan explains, “substantive due process” also refers to a related mode of judicial review, by which judges concern themselves not with whether a particular legislative end is forbidden, but with whether the state pursued a plausibly legitimate end by arbitrary means. In the words of Justice James McReynolds, “if a statute to prevent [a] conflagration should require householders to pour oil on their roofs as a means of curbing the spread of fire when discovered in the neighborhood, we could hardly uphold it.”16 Less flamboyantly, Siegan describes a New York state case striking down a prohibition on the manufacture of cigars in apartment buildings. The court ceded that “public health” may be a valid basis for legislation, but, on the facts of the case, held that the ordinance was “not a health law, and that it ha[d] no relation whatever to the public health.”

Siegan argues persuasively that these two elements of substantive due process—the absolute guarantee of basic rights, and the brake against arbitrary or ineffective regulation of any type—provided a vital shield for individual rights throughout America’s history. These judicial concerns flowed naturally, he explains, from “[common-law] tests to determine whether the legislative means substantially achieves the legislative ends; whether the means and ends are legitimate; and whether when restraint [of individuals’ freedom of action] is necessary, the one utilized is the least onerous to liberty.”

Both elements were present in the 1905 opinion of Lochner vs. New York, the case that has since become nearly synonymous with economic due process. A New York statute limiting the number of hours per day that bakers could work was challenged, resulting in a judgment declaring the law unconstitutional on the basis of its incompatibility with the Due Process clause of the 14th Amendment. The state claimed that limiting bakers to a ten-hour work day was necessary to protect their health—health being an end that nearly all judges would have regarded as a legitimate end of government. However, because such a law interfered “with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate,” the burden to prove its necessity as a “health law” was put on the state:

The mere assertion that the subject relates though but in a remote degree

to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be

valid. . . .17

The statute was overturned because the Supreme Court judged the state’s evidence in favor of the statute to be inadequate. The Court suggested that the objective of the statute was not a proper function of the government and, under any circumstances, was arbitrary since bakers were no more in need of protection for their health than nearly any other profession of the day. And there is evidence that the Court viewed the statute as a protectionist scheme for union bakeries. By weighing these factors, Siegan notes, economic due process “obligated the judiciary to secure essential individual freedoms and not to abdicate this responsibility to the legislature.”18

If this strikes one as a relatively benign point, consistent with Locke, Madison, and the basic theory of American government, Siegan would agree. Yet Lochner would be overturned, and its name would become as close to an epithet as would any 20th-century case. Consider a recent comment by David Bernstein, a law professor at George Mason University: “[B]etween the demise of Lochner

in . . . 1937 and the publication of Bernard Siegan’s Economic Liberties and the Constitution in 1980 . . . only a single article that expressed even mild support for Lochner was published.”19 Incidentally, it was the book’s support for Lochner that, in large measure, caused Siegan to be rejected by the Senate for a seat on the U.S. Court of Appeals in 1988.

As Siegan describes it, the theory behind Lochner ran into widespread opposition when it resulted in Supreme Court judgments holding some, but surely not all, nascent New Deal programs unconstitutional. Every law student today is, at some point, introduced to a mythology that has grown up around Lochner: Economic due process reasoning was advanced by key Supreme Court Justices—reactionary ideologues who favored laissez-faire capitalism against the political programs introduced by the Progressives and, later, New Dealers. Despite the will of the majority, which favored the leadership of FDR and legislative programs designed to combat economic depression, Nine Old Men on the Court abused their power to substitute their judgment of what was best for the country. The hostility to Lochner-era standards of judicial review is fairly represented by the assertion that they allowed “Supreme Court justices [to let] their ‘subjective’ and ‘political’ passions draw them into a kind of judicial review that is both anti-democratic and institutionally suicidal.”20 One influential historian of the era states that, after Lochner, the Court pressed “an unadorned endorsement of the strong and the wealthy at the expense of the weak and the poor.”21

Another value of Economic Liberties is that it smashes this myth. On the tail of Siegan’s review of the history of economic due process, showing its connection to the common law and its application by state as well as federal judges, it is clear that “[i]n no event can [the doctrine] be regarded as an invention of a particular group of federal justices.”

The history of judicial protection of economic and property rights is complicated by the fact that various influential judges had better and worse understandings of the concept of individual rights, which clashed in rulings throughout the 19th century. Siegan raises many cases which show that the Supreme Court Justices who are alleged to be the strictest adherents to economic due process upheld all manner of laws wholly inconsistent with laissez-faire. For contemporary advocates of laissez-faire, this demonstration is sobering proof of Ayn Rand’s description of capitalism as “an unknown ideal.” Unfortunately, Siegan adopts a neutral tone with respect to these contradictions. He does not endeavor to explain or even criticize the earlier cases; his focus is to show that a better strain of judicial opinion did once exist and ought to return, and he does not quarrel with what the old Court got wrong.

Nonetheless, Siegan’s discussion of the “Old Court and Personal Rights” in Economic Liberties further exposes the familiar portrait of the Lochner-era Court as a Big Lie: The Court showed the same concern and applied the same standards of review in personal-liberty or civil-right controversies as in economic-liberty cases. Siegan demonstrates that, whatever real confusions those judges had, they were not mere hypocrites—a typical leftist charge. In an opinion still championed today, for instance, Justice McReynolds struck down a law prohibiting grade-school children from being taught in any language but English as an arbitrary exercise of legislative authority.22

In the midst of the 1930s, however, with a desire to push the New Deal forward, opponents of economic-due-process reasoning found a welcome alternative in Lochner’s own dissent, penned by Oliver Wendell Holmes. It is not the place of a judge, he wrote, to upset “the right of a majority to embody their opinions in law.”23 Contrary to Lochner’s majority, which believed it had an obligation to defend individual rights against interference by the majority, Holmes opined “that the word liberty in the [Due Process clause of the] Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant

opinion. . . .”24

An exegesis on the worship of democracy over constitutionalism was delivered in the case of Nebbia vs. New York, in which the language of Lochner—“an act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid. . . .”—was replaced with a new standard of review: “A state is free to adopt whatever economic policy may be reasonably deemed to promote the public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it.”25 Further weakening protections for economic rights, the Court wrote in 1938 that, “the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional,” unless it cannot be said that “any state of facts either known or which could reasonably be assumed affords support for it.”26

This “presumption of constitutionality” is, Siegan explains, the foundation of what today is called “rational basis judicial review” of legislation. Nominally, the judiciary maintains that its role is to review economic legislation to ensure that it bears a “rational relationship” to a legitimate objective within the authority of the state. As the Supreme Court has routinely explained, however, its “cases have not elaborated on the standards for what constitutes a ‘legitimate state interest,’ but they have made clear . . . that a broad range of governmental purposes and regulations satisfy these requirements.”27 Even if one could project what it would mean to have a “rational relationship” to an undefined power, rational basis review has come to mean, in Siegan’s words: “[A]ny law that legislators pass will be sustained unless they were in a complete state of lunacy at the time they acted.”

As Economic Liberties demonstrates, the ascendancy of this standard of review meant the total destruction of the separation of powers between the judiciary and the legislature.28 This standard admits such a limited role for judicial review, however, that it does not explain how it has come to be in our time that the Court exempts economic legislation from scrutiny while freely scrutinizing other, non-economic issues. The answer to this conundrum lies in the case of United States vs. Carolene Products, handed down several years after the “presumption of constitutionality” opened the floodgates for New Deal legislation. A footnote to the decision stated:

There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

Nor need we enquire whether similar considerations enter into the review

of statutes directed at particular religious . . . or national . . . or racial minorities . . . [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.29

In other words, Siegan remarks in Economic Liberties, the Court “sought to confine the [presumption of constitutionality] to economic legislation and not have it apply also to political and ‘personal’ liberties.” Known to lawyers simply as “Footnote 4,” it set the terms of constitutional adjudication for the balance of the 20th century.

The effect of Carolene Products was to bifurcate the Courts thinking on rights: Legislation affecting rights enumerated in the Bill of Rights, such as the right to assemble or to be free from cruel and unusual punishment, would be carefully reviewed by the Court, as would those laws affecting “discrete and insular minorities” that presumably are more susceptible than others to the tyranny of the majority. Rights not enumerated in specific terms by the text of the Constitution—notably the “right of contract” and the myriad other rights encompassed by the general concept of “liberty” in the Due Process clauses—are subordinated to the alleged right of a majority to embody their opinions in law.

Just as Economic Liberties demonstrates that substantive due-process reasoning has always been present in the history of judicial review, however, it also shows that despite vocal claims to the contrary, such reasoning was not fully eclipsed by Carolene Products and its progeny. The Justices soon came to grasp that many widely cherished rights were not named in the Bill of Rights—and they sought additional justifications to defend them. The Court’s inconsistency became most apparent in Griswold vs. Connecticut, a 1965 case in which the Court was called to review a statute that made it a crime to distribute contraceptives.

Writing for the majority, Justice Douglas sought to protect the right of contraception, a liberty no more enumerated in the Bill of Rights than Lochner’s liberty of contract. He might have located the constitutional protection for such a right in the Due Process clause of the 14th Amendment, as Siegan suggests, or the 9th Amendment, which was suggested by a dissenting Justice—”[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”30 This would have meant turning back the whole constitutional theory on which nearly all of the economic regulation since the New Deal (and, truly, since the end of the Civil War) had been sustained. Instead, Justice Douglas claimed to find “penumbras, formed by emanations” from the “specific guarantees in the Bill of Rights,”31 which constituted a semi-enumerated right of privacy. Justice Douglas’s strained attempt to moor the right of privacy to the “specific guarantees in the Bill of Rights” served an important objective of liberal politics: It preserved judicial scrutiny of legislation affecting traditionally liberal social values without admitting the propriety of judicial scrutiny for economic and property rights. As is well known, the same right to privacy was also the foundation of Roe vs. Wade’s decriminalization of abortion.

The wheels have come completely off Carolene Products’ track in some “social issues” cases decided long after Economic Liberties was published, however, notably Planned Parenthood vs. Casey32 on abortion, and Lawrence vs. Texas,33 which struck down an anti-sodomy statute. Vindicating Siegan’s observations, both decisions revert to substantive due-process reasoning to protect the rights involved, and rely expressly on the concept of “liberty” found in the Due Process clause of the 14th Amendment.

In addition to books by historians (see endnote 10), some recent books by legal scholars convey similar themes and much of the same history as Economic Liberties. Some are, in fact, more hierarchical in their approach and more deeply researched. Even the best among them, however, tend to be wedded more fundamentally to particular theories of constitutional interpretation.34 Others are not merely neutral with respect to bad strains of constitutional law prior to the New Deal but tend to endorse them.35 While Siegan makes an unfortunate number of concessions to awful ideas, in my opinion, the errors are plainer than the pitfalls of some other recent books and easier to separate from what is good in his argument, and Economic Liberties remains the best introduction to the subject.

Siegan is emphatically distinguished from typical conservatives who complain loudest today about decisions such as Casey and Lawrence. Echoing Holmes’ Lochner dissent, these conservatives malign the anti-democratic nature of judicial review. They note that when the Supreme Court voids a law that violates rights not enumerated in the text of the Constitution, the Court is doing so on its own understanding of the concept of “liberty.” The fact that occasional conflicts arise among judges as to what constitutes genuine “liberty” is discomforting to conservatives. Typically, they object to the fact that secular or liberal judges are preventing what they view as a conservative majority’s “right” to enact any law or regulation of their pleasure. To be generous, some believe that these conflicts reek of arbitrary judgment—especially when judicial decisions fall along clearly partisan lines. The point they make is that allowing judges to uphold unenumerated liberties may imperil the rule of law, since each judge is thereby vested with the authority to decide which such liberties constitute genuine individual rights—and to impose that independent understanding of the concept of liberty as law of the land.

Unlike Siegan, who remedies that concern by advocating stronger protections for all unenumerated rights, these conservatives say, in effect, a pox on both your houses: The liberals were right to oppose Lochner, since the words “liberty of contract” were nowhere found in the constitution; but neither are the words “right to privacy.”

The conservatives propose to secure government intervention in our personal lives by the same wrong methods of adjudication the liberals used to institutionalize the welfare state. Justice Antonin Scalia leads this movement with his philosophy of adjudication known as textualism, which rejects recognition of unenumerated liberties.36 In discussing decisions upholding abortion, he writes: “You want a right to abortion, create it the way most rights are created in a democracy: Pass a law. If you don’t want it, pass a law the other way.”37 Justice Scalia’s textualism was developed some years after the publication of Economic Liberties, but it’s clear that this reasoning is unfathomable to Siegan, who finds it obvious that “[r]ights do not have to be named in the Constitution to be accorded the full authority of that document.”

Comments throughout Economic Liberties indicate Siegan’s belief that individuals possess an incalculable number of rights, over which the majority has no political claim except when authorized by limited, enumerated powers set forth in the Constitution.38 The conservatives, by contrast, stand that formula on its head: A majority is entitled to enact laws abridging any individual rights, except those few named in the Bill of Rights or other provisions of the Constitution. This view was expressed in an opinion authored by then-appellate court Judge William Rehnquist stating that any time a state is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury39—and labeled “judicial abdication” by Siegan. It is not surprising, then, that Judge Robert Bork has been one of Siegan’s severest critics. In Bork’s view, “[t]here being nothing in the Constitution about maximum hours laws, minimum wage laws, contraception, or abortion, the Court should have said simply that and left the legislative decision where it was.”40 Siegan demands that such conservatives do not ignore the express provisions of the Constitution respecting unenumerated liberties, foremost the 9th Amendment and Due Process clauses: “Omission of protection is not less defective or arbitrary than its exaggeration.”

In place of the false dichotomy between “judicial activism” and judicial deference to legislatures, Economic Liberties urges a restoration of the principle of the separation of powers. Siegan acknowledges that “policy making” by judges is a serious problem when it occurs, but argues that strict adherence to the Constitution’s design is the proper solution. He is critical, for instance, of a line of Supreme Court precedents that have established a “property right” to welfare payments in certain circumstances. The problem, he claims, is not an “activist judiciary” that is bent on “creating rights”—the typical conservative charge—but that the judiciary has improperly engaged in what he terms “affirmative jurisprudence.” By this, he means that “instead of exercising a negative on the other branches and limit[ing] the power and size of government,” the judiciary “supervises public expenditure and influences taxation policy” by enforcing laws that create a “right” to “goods and services for sections of the population. . . .” The proper role of the judiciary, he argues, is always negative: It has only the power in our system to guard individual rights against majorities and the state. If it adheres to that role, the conservative’s alleged fear of “rule by judges” is minimized.

As a solution to the prejudice against property rights enshrined by Carolene Products, Siegan proposes a set of rules for judicial review that he believes would “guarantee two distinct parts of the American plan of government: first, the structure of government as set forth in the Constitution, and second, the liberties of the people:”

[D]ue process scrutiny would apply generally to legislation and regulation, [and] the government would have the burden of persuading a court . . . first, that the legislation serves important government objectives; second, that the restraint imposed by government is substantially related to achievement of these objectives and the fit between means and ends must be close; and third, that a similar result cannot be achieved by a less drastic means.

These are essentially the rules that Lochner-era federal courts used to exercise judicial review over economic legislation, and they represent a change that advocates of capitalism and constitutionalism should welcome. But Siegan’s wider solution is characteristic of the book’s chief flaw: It is essentially conservative in nature.

Economic Liberties is not a work of political philosophy, nor a blueprint for rewriting the Constitution according to the standard of individual rights, nor even an attempt to more rigorously define the legitimate scope of the police power. It is a book that simply exposes and challenges the New-Deal-era break with an earlier tradition of judicial review. Siegan does not present an original philosophy of law or adjudication as a standard for reform, but appeals to the legal principles that reigned during periods of constitutional history more protective of property rights. Economic Liberties never discusses the deeper philosophic maladies underlying the judiciary’s retreat from judicial review: notably skepticism with respect to the concept of individual rights (and its immediate philosophic cause, pragmatism), and the consequent loss of moral certainty typical of some 19th-century judgments Siegan discusses. He simply observes the great dichotomy that has arisen between judicial treatment of economic liberties and other rights, and demonstrates it to be false and destructive.

Unfortunately, in advocating a return to the past, Siegan also assumes some of the bad premises of that past—premises on which the Progressive- and New-Deal-era thinkers cashed in to undermine capitalism and judicial review, and on which the conservative heirs to Carolene Products continue to rely. His understanding of the principle of individual rights is better, in some respects, but similar to influential legal thinkers of the late 19th century,41 and he nowhere advocates a premise as radical or precise as Ayn Rand’s premise that “[s]ince the protection of individual rights is the only proper purpose of government, it is the only proper subject of legislation.”42

In Economic Liberties, there is an entire chapter, for instance, on the failures of regulation, which is a pragmatic discussion of the ways in which various regulatory schemes have failed to “work.” In Siegan’s view, such programs will be properly struck down as violating due process, using the classic standard of judicial review: Such laws are arbitrary because they do not have a direct relation as a means to the legislative end for which they were enacted. In the course of a typical example, Siegan writes: “Income redistribution is utter folly if the outcome is that fewer poor people are better off.” His entire method is shot through with this approach to adjudication, which often consists of “balancing” state power versus individual rights, and despite its many virtues, this approach makes Economic Liberties a mixed book: both a valuable source of judicial history and a repetition of dangerous philosophical errors.

His view that such “balancing” is necessary is likely the result of two problems in his approach to his subject. Since he does not begin with a clear definition of individual rights, he is prone to mis-integrate cases and legal doctrines according to the less fundamental principle of the separation of powers. Without a clear grasp of the hierarchy of the two principles, he does not readily find answers to traditional conflicts.

Whereas Thomas Jefferson could rely on Locke’s radical conception of individual rights to draft a principled break from England and the past, there is no such figure in the philosophy of law or adjudication. Through the 19th century, lawyers and judges who sought to implement the Constitution often harkened back to pre-American legal authorities whose grasp of individual rights were less advanced than, and even inconsistent with, the principles of the Declaration of Independence. English authorities, such as Coke and Blackstone, were typically applied directly to American controversies, albeit with some explicit attempts to strip out anti-American premises, such as parliamentary supremacy. Jefferson himself, however, lamented that the trend of using Blackstone as a primary source for legal education in the early 19th century was a failure of the second generation of Americans to grasp the principle of individual rights.43 It is disappointing but not surprising, therefore, that an honest but non-philosophic legal writer such as Siegan is unable to avoid certain errors.

A treatise advancing an original philosophy of adjudication, based on the principle of individual rights, however, would be an entirely different book. The one Siegan has written is much more limited, but nonetheless important. A new generation of radicals can learn vital lessons from this conservative: how and when American legal protections for property rights were lost. That is not a small value, and judged in context, it is an admirable offering. At a time when virtually no one in the legal academy seemed willing, Siegan demonstrated that there was no constitutional basis for the Supreme Court’s refusal to uphold economic liberties and property rights against attack. The publication of Economic Liberties in 1980 made it impossible for legal academics to ignore this fact, and it resulted in a growing movement among them to reverse the assault on economic and property rights launched during the 1930s. Twenty-five years later, four dissenting Justices in Kelo is a signal that there remains an opportunity for change. Anyone interested in understanding or joining that fight will benefit from reading Siegan’s book.

Endnotes

1 Kelo vs. New London, 545 U.S. ___ (2005). Thomas, J., dissenting (Slip Opinion, p. 14).

2 The most comprehensive listing is available at http://maps.castlecoalition.org/legislation.html, a website maintained by the Institute for Justice. IJ attorneys Dana Berliner and Scott Bullock represented the plaintiffs in Kelo before the Supreme Court, and continue to lead the movement for reform.

3 Kelo, 545 U.S. ___ (Slip Opinion, p. 1).

4 Lingle vs. Chevron, 544 U.S. 528, 543 (2005).

5 Kelo, 545 U.S. ___, Thomas J., dissenting (Slip Opinion, p. 15).

6 The 1980 edition is published by University of Chicago Press. An “expanded second edition” published in 2005 by Transaction Publishers is now available, but it cannot be recommended above the original edition. The new book, although possessing the same title, contains substantially different content and amplifies flaws of the original edition discussed here. Attorneys, historians, or those with more than a layman’s interest in the subject of economic liberties, may find it of interest to compare both.

7 Hawaii vs. Midkiff, 467 U.S. 229, 240 (1981).

8 Ibid. (quoting TVA vs. Welch, 327 U.S. 546, 552 [1946]).

9 Berman vs. Parker, 348 U.S. 26, 32–33 (1954).

10 Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), p. 331. Unless otherwise noted, all citations herein are from Economic Liberties and the Constitution.

11 Worthwhile sources in this group are Howard Gillman, The Constitution Besieged (Durham, N.C.: Duke University Press, 1993); Barry Cushman, Rethinking the New Deal Court (New York: Oxford University Press, 1998); James W. Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights, 2nd ed. (New York: Oxford University Press, 1998); G. Edward White, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2000). Each of these books contains valuable material and presents more detailed history than Economic Liberties, and Gillman’s work is the most influential among academics. The newer books, except Ely, however, all tend to slant their presentations to favor liberal political ideals. A good criticism of Gillman’s interpretation of leading “ Lochner-era” cases, and a valuable article on its own, is David E. Bernstein, “ Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Jurisprudence,” Georgetown Law Journal, vol. 92, no. 1, November 2003, pp. 1–60.

12 Loan Association vs. Topeka, 87 U.S. 655 (1874).

13 Ibid., p. 663.

14 This terminology is anachronistic. The terms “substantive due process” and “economic due process” were not used by the judges who were influenced by these ideas. They made scant distinction between “due process as a guarantee of substantive rights” vs. “due process as a procedural guarantee against the arbitrary infringement of more basic rights,” which is a common distinction today. The distinction was not used by treatise writers or commentators until the 1950s, to the best of my knowledge.

15 Allegeyer vs. Louisiana, 165 U.S. 579, 589 (1897).

16 Nebbia vs. New York, 291 U.S. 502, 556 (1934). McReynolds, J., dissenting.

17 Lochner vs. New York, 198 U.S. 45, 57, emphasis added (1905).

18 There is a fair question as to whether the drafters of the 14th Amendment had the Due Process clause in mind as the appropriate element of the constitution for the protection of economic rights. There is much overlap in the meaning of “due process,” “privileges or immunities,” and “equal protection,” in the 14th Amendment. Siegan does not deem it important in the context. He writes, “If [judicial] transgression occurred under economic due process, it related mostly to form; perhaps other provisions of the Constitution were more appropriate to the issue. The error of succeeding courts is greater. By totally ignoring or rejecting relevant constitutional meanings and background, the contemporary Supreme Court has committed [a] substantive mistake—a higher degree of fault.” It is likely that the proponents of the 14th Amendment believed the privileges or immunities clause to be the “catch-all” protection for individual rights that the Due Process clause became. See, for instance, the separate dissenting opinions filed by Justice Stephen Field and Justice Joseph Bradley in the Slaughterhouse Cases, 83 U.S. 36 (1872); and Richard A. Epstein, “Of Law and Persons: Reconstructing the Privileges or Immunities Clause of the Fourteenth Amendment,” New York University Journal of Law and Liberty, vol. 1., no. 1, 2005, p. 334. An interesting discussion in the context of a blueprint to restore the Privileges or Immunities clause to constitutional law is found in Clint Bolick, Unfinished Business: A Civil Rights Strategy for America’s Third Century (San Francisco: Pacific Research Institute, 1999). Siegan himself, however, has elsewhere argued that the case for substantive due process is deeper than most writers suppose; see: Property Rights from Magna Carta to the Fourteenth Amendment (New Brunswick, NJ: Transaction, 2001).

19 David E. Bernstein, “ Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Jurisprudence,” Georgetown Law Journal, vol. 92, no. 1, November 2003, p. 5 n. 12.

20 See Duncan Kennedy, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” Research in Law and Sociology, vol. 3, 1980, p. 10.

21 Robert McCloskey, American Conservatism in the Age of Enterprise, 1865–1910, (New York: Harper Torchbooks, 1951) p. 84.

22 See Meyer vs. Nebraska, 262 U.S. 390 (1923).

23 Lochner, 198 U.S. 75 (1905). Holmes, J., dissenting.

24 Ibid., p. 76.

25 Nebbia vs. New York, 291 U.S. 502 (1934).

26 United States vs. Carolene Products, 304 U.S. 144, 153–54, emphasis added (1938).

27 Nollan vs. California Coastal Comm’n, 483 U.S. 825, 834–35 (1987).

28 Ascendancy, rather than introduction, is unfortunately the proper term: As indicated in this article, competing conceptions of individual rights and consequent doctrines of judicial review have been present since the Founding. For an early, nearly identical statement of the standard of review ultimately adopted by the New-Deal-era court, see Ogden vs. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827). (“It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt.”). Siegan discusses Ogden in a positive light, which is curious but highlights that even under the guidance of bad standards of review, older generations of judges were nevertheless more protective of property rights.

29 Carolene Products, 304 U.S. 154 n. 4. (1934).

30 U.S. Constitution, Amendment IX.

31 Griswold vs. Connecticut, 381 U.S. 479 (1965).

32 Planned Parenthood vs. Casey, 505 U.S. 833 (1992).

33 Lawrence vs. Texas, 539 U.S. 558 (2003).

34 Randy E. Barnett’s book Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton University Press, 2004), for instance, is a much more comprehensive treatment of the subject, proceeding from a discussion of the 9th Amendment. It is better integrated and more hierarchically structured. However, it is tightly integrated with a particular version of originalism associated most closely with him and some others (see, e.g., Scott Gerber, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1996); Timothy M. Sandefur, “Liberal Originalism: A Past for the Future,” Harvard Journal of Law and Public Policy, vol. 27, no. 2, Spring 2004, pp. 489–542.

35 Specifically, Richard A. Epstein, How the Progressives Rewrote the Constitution (Washington, DC: Cato Institute, 2006). It is, nonetheless, a pithy, accurate introduction to the collapse of the separation of powers in the 20th century.

36 For a good discussion of textualism and related ideas, see Adam Mossoff, “The Threat of a Conservative Supreme Court,” The Intellectual Activist, vol. 14, no. 3, September 2000, pp. 17–29.

37 See http://usgovinfo.about.com/library/weekly/aa022701a.htm.

38 This principle is a fundamental to Siegan, who expands on his view in “Majorities May Limit the Liberties of Individuals Only When the Constitution Authorizes It,” San Diego Law Review, vol. 27, no. 2, Winter 1990, pp. 309–358.

39 See New Motor Vehicle Board vs. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977).

40 Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1997), p. 225.

41 Two such writers with works expressing views similar to Siegan on the Due Process clause, who are still worth reading today, are Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, 3rd ed. (Boston: Little, Brown & Company, 1874); and Christopher G. Tiedeman, A Treatise on the Limitations of the Police Power in the United States (St. Louis: F. H. Thomas Law Book Co., 1886).

42 Ayn Rand, “The Nature of Government,” Capitalism: The Unknown Ideal, (New York: Signet, 1967), p. 332; see also Harry Binswanger, “What Is Objective Law?” The Intellectual Activist, vol. 6, no. 1, January 1992, pp. 8–14.

43 Thomas Jefferson, Thomas Jefferson: Writings, edited by M. Peterson (New York: Library of America, 1984), pp. 1513–14. (“[W]hen . . . Blackstone became the student’s hornbook, from that moment, that profession (the nursery of our Congress) began to slide into toryism, and nearly all the young brood of lawyers now are of that hue.”)

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