Economic Liberties And the Constitution

437 Pages·2005·2.89 MB·English

by  Bernard H. Siegan

Law and Society
Economics
American Studies
ECONOMIC LIBERTIES AND
THE CONSTITUTION
Second Edition, Completely Revised
Bernard H. Siegan
In this seminal work, Bernard Siegan traces the history of constitutional
protection for economic liberties in the United States. He argues that the
law began to change with respect to economic liberties in the late 1930s.
At that time, the Supreme Court abdicated much of its authority to protect
property rights, and instead condoned the expansion of state power over
private property.
Siegan brings the argument originally advanced in the first edition
completely up to date. He explores the moral position behind capitalism and
discusses why former communist countries  irting with decentralization and a
free market (for instance, China, Cambodia, Vietnam, and Laos) have become
more progressive and prosperous as a result. He contrasts the bene ts of a
free, deregulated economy with the dangers of over-regulation and moves
towards socialized welfare—most speci cally as happened during Franklin
Roosevelt’s presidency. Supporting his thesis with historical court cases,
Siegan discusses the past and present status of economic liberties under
the Constitution, clari es constitutional interpretation and due process, and
suggests ways of safeguarding economic liberties.
About the original edition, Doug Bandow of Reason noted, “Siegan has
written a vitally important book that is sure to ignite an impassioned legal
and philosophical debate. The reason—the necessity—for protecting economic
liberty is no less than that guaranteeing political and civil liberty.” Joseph
Sobran of the National Review wrote, “Siegan…makes a powerful general case
for economic liberty, on both historical and more strictly empirical grounds….
Siegan has done a brilliant piece of work, not only where it was badly needed,
but where the need had hardly been recognized until he addressed it.” And
Edwin Meese remarked that, “This timely and important book shows how far we
have drifted from protecting basic liberties that the Framers of the Constitution
sought to secure. I recommend it highly.” This new, completely revised edition
of Economic Liberties and the Constitution will be essential reading for students
of economics, history, public policy, law, and political science.
About the Author
Bernard H. Siegan is Distinguished Professor of Law at the
University of San Diego School of Law. He is the author of
Property Rights, Property and Freedom, and The Supreme
Court’s Constitution, all available from Transaction.
Library of Congress: 2004062003
Printed in the U.S.A.
Cover design by Ellen F. Kane
www.transactionpub.com
ISBN: 1-4128-0525-2

Second paperback printing 2009
Copyright © 2006 by Transaction Publishers, New Brunswick, New Jersey.
All rights reserved under International and Pan-American Copyright Conven-
tions. No part of this book may be reproduced or transmitted in any form or by
any means, electronic or mechanical, including photocopy, recording, or any
information storage and retrieval system, without prior permission in writing
from the publisher. All inquiries should be addressed to Transaction Publish-
ers, Rutgers—The State University, 35 Berrue Circle, Piscataway, New Jersey
08854-8042. www.transactionpub.com
This book is printed on acid-free paper that meets the American National Stan-
dard for Permanence of Paper for Printed Library Materials.
Library of Congress Catalog Number: 2004062003
ISBN: 0-7658-0572-3 (cloth); 1-4128-0525-2 (paper)
Printed in the United States of America
Library of Congress Cataloging-in-Publication Data
Siegan, Bernard H.
Economic liberties and the constitution / Bernard H. Siegan—2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 0-7658-0572-3 (cloth : alk. paper)—ISBN 1-4128-0525-2 (paper :
alk. paper)
1. Trade regulation—United States—Cases. 2. Constitutional law—
United States—Economic aspects—Cases. 3. Liberty of contract—Unit-
ed States—Cases. 4. Right of property—United States—Cases.
I. Title.
KF1600.A7S53 2005
343.73’07—dc22
2004062003
Dedicated
to my wife, Shelley,
my son, Jon,
and to the memory of my former law partner of twenty years
and eternal friend, Norman Karlin

Contents
Acknowledgments ix
Introduction xi
1. The Magna Carta 1
2. Protection of Material Rights Prior to the Ratification 11
of the Constitution
3. Framing a Constitution to Secure Liberty 59
4. Judicial Interpretations of Due Process Prior to the Framing 87
of the Fourteenth Amendment
5. Substantive Due Process Decisions 1905-1937: 107
Lochner v. New York (1905)
Comment by Professor Christopher Wonnell
West Coast Hotel Co. v. Parrish et al. (1937)
Nebbia v. New York (1934)
New State Ice Co. v. Liebmann (1932)
6. Destroying the Original Constitution 175
7. The New Deal Justices Reinterpret the Constitution 191
8. U.S. Supreme Court Refuses to Reverse Economic Liberties 209
Decisions and Strikes Down Commerce Clause Decisions
9. Failures of Statism in the United States and its Collapse 227
Elsewhere in the World
10. Economic Success: Germany (Come and Gone), Ireland, 263
China, and Vietnam
11. Recent Decisions That Do Not Apply Due Process or Equal 303
Protection to Protect Economic Liberties:
Dolan v. City of Tigard (1994)
BMW of North America, Inc. v. Gore (1996)
Allied Structural Steel Co. v. Spannaus (1978)
C & A Carbone, Inc. v. Town of Clarkstown (1994)
44 Liquormart, Inc. et al. v. Rhode Island et al. (1996)
12. Some Lower Courts Strike Down Economic Legislation, 403
but Supreme Court Changes Uncertain
Epilogue 419
Index 421
Acknowledgments
I am indebted to my able research assistants, Denise Brink, Damien Schiff,
Gregory Thomas, and Kurt Hoffman (financial advisor), for their tireless work
and helpful ideas and to Brian Williams, reference librarian and foreign/inter-
national law specialist, for his invaluable research. I also wish to thank my
secretary, Rosemary Getty, for her patience and friendship these twenty-two
years.
ix