Sunday, June 19, 2022

Economic Freedom in the Alito Draft

I read the draft Supreme Court decision on Roe v. Wade. I was surprised that the draft so quickly prejudges economic liberty, which I thought of as a topic still open for debate. I wrote the essay below. I haven't been able to interest any of the usual places that publish my op-eds, so, with the decision likely to come next week, here it is. 


Dear Justices: As you overturn Roe, don’t prejudge economic liberty! Economic, social and political freedom are intertwined. Reform of the administrative state is America’s next great challenge. Leave us the chance to argue for liberty and privacy to transact, communicate, and work as we wish. 

Justice Alito’s draft opinion affirms that the Constitution includes privacy and liberty among unenumerated rights. Good. To counter hysteria that other precedents would soon fall, he explicitly affirms them. Good. Of “the right to marry a person of a different race, … the right to marry while in prison,… the right to obtain contraceptives, … the right to reside with relatives, …the right to make decisions about the education of one’s children, … the right not to be sterilized ,… to undergo involuntary surgery, forced administration of drugs,…[the] right to engage in private consensual sex acts,…the right to marry a person of the same sex,’’ Justice Alito writes that overturning Roe, “…does not undermine them in any way”  (p.32).

And then he—or perhaps overenthusiastic clerks—takes a step too far. The draft also reassures the left that their economic agenda is not at risk, by explicitly affirming the radical jurisprudence of the late New Deal. 

The draft opinion savages  Lochner v. New York as  “Freewheeling judicial policymaking,” a “discredited decision,” (p. 14) and an “erroneous decision’’ on the scale of the infamous Plessy v. Ferguson (p.64). Lochner examined whether the state of New York could restrict hours of work. The 1905 court found such limitations interfere “with the right and liberty of the individual to contract.” (George Will's Conservative Sensibility tells the story well.)  The draft praises West Coast Hotel (1937), which overruled an earlier case “which had held that a law setting minimum wages for women violated the “liberty” protected by the fifth amendment.” Economic liberty gets sarcastic scare quotes. Piling on, “West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty rights against state and federal health and welfare legislation,” including decisions “holding invalid a law banning contracts forbidding employees to join union,” or “holding invalid laws fixing the weight of loaves of bread,” (p. 36) and more. 

The separation between social and sexual liberty and privacy and extensive government intrusion into the most minute economic affairs makes no logical sense. The draft tries and fails. The draft claims that “appeals to a broader right to autonomy…could license fundamental rights to illicit drug use, prostitution, and the like.” But we can talk about Uber drivers’ right to set their own hours without demanding legal prostitution. We might not even want to prejudge a fundamental right to "illicit" drug use, which in that phrasing includes violating the FDA's latest diktats. The draft states that “what sharply distinguishes” other rights from abortion is the “life of an unborn human being.” But even drug use and prostitution do not involve unborn life. 

The draft denies unenumerated rights not “deeply rooted in history and tradition.” (p. 11) That is an interesting addition to the Constitution’s text, and I imagine legal scholars might want to debate that limitation. The framers could have added it, but did not do so. This is its central argument. It extensively describes legal restrictions on abortion in the 19th century, when the 14th amendment was written, to document that an individual right to abortion is not "deeply rooted in history and tradition." 

But by that standard, the Court must then allow that history and tradition, our “scheme of ordered liberty,” long favored economic liberty and privacy. The same history of 19th century law would not find an inkling of the Department of Labor’s intrusive regulations or the FDA’s baby formula fiasco. Economic regulation was novel, not economic liberty. And many people today believe that political and social liberty cannot exist without economic liberty. Start with Friedman's Capitalism and Freedom. 

The draft proclaims that economic liberty is subject to majoritarian rule, where personal and sexual liberty is an individual right. Again citing West Coast Hotel, “the court .. overruled decisions that wrongly removed an issue from the people and the democratic process.” (p. 40.) But economic liberty must be an individual right, protected from the whims of the majority, which is even more inclined to use law to enrich one at the expense of the other than it is to force sexual conformity. We don’t vote whether a city should grab a house and turn it in to a mall or a homeless shelter. Well, we do, but we shouldn’t. To function, property rights must be an individual right. 

In needlessly asserting one narrative history of economic rights while making a decision on abortion, the draft gratuitously denies the possibility of another history: The Lochner-era court did hold to the Constitution’s protections and the country’s history and traditions, until the political pressure and Roosevelt’s court-packing threats caused the court to back down, and to write constitutional gibberish, rather than wait for the consensus that constitutional amendment would bring. 

I support an individual Constitutional right to abortion. But I also support the court overturning Roe v. Wade. Many thoughtful people on the left agree (for example, Yale Law's Akhil Reed Amar on Common Sese). My policy preferences should not matter in any of my arguments today, but I think they do. If more of us were able to separate our policy preferences from judgement whether the court or state legislatures should decide an issue, as a matter of practicality and keeping the country together, we might have a healthier debate. 

Abortion needs to go back to the states. The court never considered a clear right, instead trying to write the compromises only legislatures can broker. How about trading some abortion restrictions for greater funding for contraceptives, adoption, child care and so forth? Only a legislature can do that, and produce the buy-in that such compromises produce. I won't be totally happy, you won't be totally happy, but we can stop tearing the country apart. Yes, “far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division” (p. 6) because  “Those on the losing side…could no longer seek to persuade their elected representatives to adopt policies consistent with their views.” (p. 40) More importantly, after Roe, they must try to persuade their fellow citizens to elect different representatives, and politicians will have to recalibrate their positions. It's easy to be extreme when we know nothing can happen. Both parties are now the dog that caught the car. 

Most of all, abortion has poisoned Court politics and public debate for 50 years. The Court, and we who argue about what the court should do, and what kind of justices to appoint, can finally move on to languishing great questions of our government. 

Prime among those is how to reform our dysfunctional government by executive order and imperious bureaucracy. Wickard v. Filburn could be the new Roe v. Wade. Filburn grew wheat on his own farm to feed his own animals. The 1942 Court held that the federal government’s power to regulate interstate commerce extended to forcibly stopping Filburn from doing so, in order to drive up the price of wheat. The Court affirmed it in Gonzalez v. Raich (2005), with even Antonin Scalia concurring. The Court decided that growing pot in your own backyard for your own private medicinal purposes, legal in a state, can be banned by the federal government as interstate commerce. This case lies at the foundation of the administrative state. Really? Is this beyond dispute? 

For years, Justices before the Senate loudly said they would not prejudge Roe v. Wade, so as not to prejudge cases before hearing them. Yes, it is wise for the Court to say loudly that this decision does not imperil to contraception and interracial marriage, if only to reveal how many critics don’t bother to read decisions. But please, don’t needlessly prejudge economic freedom. Sometimes, silence is golden. 


Update: The ruling is out, and most of the economic rights trashing is gone! Economic liberty is still in quotes, and West Coast Hotel still reverses a "wrong" precedent, but it's a lot better. 

I heard over and over again on NPR yesterday how the court has never taken away rights before. Uh, hello? The right to contract, to decide your own hours and nature of work, to build whatever you want on your property no matter what the planning, historical, zoning commission say; the right to grow wheat in your own back yard and feed it to your horse.  


  1. David R. HendersonJune 19, 2022 at 10:03 AM


  2. Completely agree, Professor. Though I generally liked the draft, Lochner jumped off the page at me, too. On its home turf, the significant thing about the draft is that it does NOT cancel abortion rights. Rather it put's their determination in the hands of legislatures, where it belongs, as you say.

  3. For once we are talking about a subject that I am knowledgeable about. I am a retired but not yet disbarred lawyer. As a lawyer, I will be thrilled if the Court tosses Roe on the junk-heap of bad decisions. It was bad law when it was decided. I was taking constitutional law when that happened and no one in the class including the quite liberal professor and some rabid feminists could make any sense out of it.

    Eventually the Court recognized the intellectual problem, and in Casey it grounded the right to abort a pregnancy in the constitutional doctrine of "substantive due process". The decisions you mention concerning contraception, sexual acts, and same sex marriage are similarly grounded. And, so was Lochner.

    The problem with all of those decisions is that the idea of "substantive due process" is not only an oxymoron it is a pure judicial invention that is used by courts to overreach their powers.

    If you want a one sentence description of the deformation of the powers of the Courts since the 1930s it is that they have neglected their undoubted power to police the limits of the power of the Federal Government (e.g. the scope of the commerce clause) and at the same time they have invented and misused doctrines like substantive due process and incorporation of parts of Amendments I through VIII into Amendment XIV to limit of the powers of the States reserved to them by Amendment X.

    Not all of the abuses of judicial power in the USA are based on the Constitution or its misinterpretation by SCOTUS. Some of them, like the disaster of eternal nitpicking of environmental reviews, are based on statutes like the National Environmental Policy Act which need to be amended to remove the courts from the process. Another example is the Administrative Procedures Act which is an abomination that should be repealed in toto.

    The climb down from SCOTUS's mountain of errors will be difficult. Some of the bad decisions such as Griswold (contraception) and Lawrence (sexual acts) will not come up again because the laws on which they were based no longer have a constituency and it is hard to imagine any legislature pushing new versions of them. Obergfell (same sex marriage) poses truly difficult issues of reliance because so many people have arranged their lives and properties on the strength of its result. OTOH, we can hope that the Court will now be equipped to crush unwarranted extensions of its dismally poor reasoning to polygamous or incestuous marriages.

    As for your plea to the Court to recognize and protect economic liberties, I must dissent. I agree that economic liberties are just as important and just as real as sexual liberties. But, I think it is a bad idea to make the courts their protectors. Any power given to any person or institution can be misused. When a democratically elected legislature abuses its powers, the remedy is to elect new legislators. Giving more power to unelected judges who are shielded from democratic processes for substantial reasons of prudence, is simply a bad idea. Not only does it run the risk of making the crochets and quirks of elderly lawyers the law of the land, but it subverts the legitimacy of the law. Without legitimate laws, society must become a gulag if it is not to degenerate into the war of all against all.

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    1. The difference between Wickard and Roe is that Wickard was a misinterpretation of an existing limitation on Congressional power which allowed Congress to overstep its boundaries. It was an abdication of the Courts constitutional duty to police the boundaries of Federal Power.

      Roe, OTOH, was an assertion of the Court's power over state legislation that was not part of the Constitution and is arguably a clear violation of Amendment X.

      Wickard was an abdication. Roe was an assertion.

      Both opinions were nonsense and both should scraped.

  5. I did not know SC justices engaged in such tangled thinking.

    1. Clearly you have not spent enough time reading SCOTUS opinions.

  6. As Fat Man says, the 14th Amendment does not protect freedom of contract, and asking the court to read it in via economic substantive due process is a dangerous mistake. The draft's dicta is correct to reject Lochner.

    However, Article I Section 10 says "No state shall pass any law impairing the obligation of contracts". Unfortunately this clause has essentially been deleted from the Constitution, since "Parties by entering into contracts may not stop the legislature from enacting laws intended for the public good" (Manigault v. Springs, 1905).

    Admittedly, it is hard to see what laws a government could enact without impairing some contract. Even Cochrane would not support a literal interpretation of this clause.

    As for stopping the administrative state, one justice is ahead of you there: read Thomas's dissent in Department of Transportation et al. v. Association of American Railroads (2015).

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  8. A recent "Dissed" podcast may interest you - four experts in constitutional law - Daniel Dew, Ilya Somin, Josh Blackman, and Clark Neily - discuss which of four Supreme Court precedents (Chevron v. NRDC, Kelo v. City of New London, Wickard v. Filburn, or the Slaughterhouse Cases) should be overturned most urgently.

  9. This:

    "The separation between social and sexual liberty and privacy and extensive government intrusion into the most minute economic affairs makes no logical sense."

    Nope it doesn't.

    Makes you wonder about life, liberty, and the pursuit (chase!) of happiness.

    Woven into laws is the logical conclusion that the stability of society is important. That gets turned on its head when the supply side of human life is left to the determination of those who technically bring it forth.

    Society is made up of individuals making choices, and the hope is that they provide stability instead of causing chaos. This issue is chaotic because it gets right down to our primal operations/functions/feelings as humans.

    Even if it went back to states, it creates economic frictions for access to care. Maybe that's the point. Creating economic frictions restricts access. They can kick it to states without having a universal law that governs behavior and choices.

  10. "Support an individual [?] constitutional right to an abortion" presumably means supporting amending the constitution since that "right" does not exist and as Alioto points out never did existed. The Court certainly has taken "rights" away in the past -- Plessy vs. Fergusson took away from African Americans the right to be treated equally as set forth in the 14th Amendment, Roe took away rights of fetuses, and so on. The language of rights is nonsense.

  11. The reason Alito bashes the Lochner case is that its legal reasoning was the same as Roe’s. It found a hidden (because it’s nowhere in the actual text) power in the 14th Amendment that allows FEDERAL courts to enact sweeping STATE legislation. The Lochner court applied this power in a way conservatives liked while Roe applied it a way that liberals liked, but both cases rely on the same legal reasoning. For those of us who think that, in the long run, separation of powers is more important than any single policy question, both Lochner and Roe are equally bad results.

    Now as a policy matter I happen to agree with both Lochner and Roe. But those are battles I need to win at the ballot box. The right to govern ourselves via democracy necessarily includes the right to make terrible choices, particularly at the STATE level. If every time the voters in a State make a bad choice the Supreme Court swoops in and finds some new, hidden text in the Constitution to undue the damage we no longer have a democracy at all.

    I know that’s hard for everyone in the moment, and boy-oh-boy is that Texas law in particular just wildly awful and unacceptable. But for better or worse, as VOTERS we need to step up and fix it. That is just part of being a grownup in a democracy: there’s no magical document that will do the work for us.

    One small clarification that may not be obvious to non-lawyers: the logic above only applies to 14th amendment “substantive due process” type issues. The whole “fix it at the ballot box” thing is not a valid solution for groups that are too small to win elections. Which is precisely why the Constitution has an Equal Protection clause in the actual text. The whole issue with Roe and Lochner is that they cannot succeed as Equal Protection clause cases (because they involve groups that comprise at least 50 percent of voters).

  12. It seems the courts relegated economic rights and liberties to 2nd-class status beginning with the original Progressive movement and its emphasis on economic liberty as a source of exploitation. And quite frankly, few have offered effective counter arguments except for appealing to general economic efficiency. And while this counter argument may be valid, it doesn't prevail in public policy because it doesn't tug the heartstrings. But recently I came across the work of Maggate Wade, a passionate defender of economic liberty who very persuasively argues it is essential to uplifting the conditions of the poorest of the poor in Africa. Every Econ 101 and Law & Econ course should include her perspective.


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