Part 1 | Part 2 | Part 3 [to be posted]
We libertarians like to distinguish ourselves from our friends on the Right and Left by the fact that we care equally about both economic liberties and social/civil liberties. For libertarians the right to engage in contract and exchange with other consenting adults is just as important as the right to engage in speech and sex with other consenting adults. Other civil liberties, such as the right to bear arms or to buy, sell, and ingest various chemical substances are outgrowths of the rights to contract and the right to engage in “anything that’s peaceful” (i.e., that does not cause harm to innocent others). Libertarians see economic and civil liberties as inextricably entwined in just that freedom to engage in anything that’s peaceful.
Yet these two types of liberties are not only separated in the political philosophies of contemporary liberals and conservatives, they are deeply bifurcated in the way that the Supreme Court has come to think about the constitutional stat-us of those rights. The short version is that rights of contract and exchange had some decent level of constitutional protection for a brief period early in the 20th century, but the New Deal ended that. Meanwhile, the right to marry, the rights of parents, rights of free speech, the right to engage in consensual sexual behavior and others like it have been staunchly defended by the Court and often more strongly than in decades past.
Of particular interest are the ones other than free speech, such as parental rights and those surrounding sexual behavior often subsumed under “the right to privacy.” The privacy-rights cases (including those surrounding contraception and abortion) are especially controversial. One reason, of course, is that there is no actual “right to privacy” in the text of the Constitution, and it’s that point that often troubles those on the Right most deeply. However, it’s equally true that the rights of parents, the right to marry, and all of the rights to contract and exchange are also nowhere to be found in the text of the Constitution. That does not seem to bother the Right as much. But more important: the rights of parents and the right to marry are largely considered uncontroversial despite the lack of textual referent, while the privacy rights and the economic rights certainly are. Is there a way to untangle this and a way, perhaps, to reconcile them?
The key to this puzzle is how the doctrine of “substantive due process” got split early in the 20th century. The 19th century saw a series of decisions that found in the Fourteenth Amendment protection for a whole variety of rights not specifically enumerated in the Constitution. In the late 19th century, those rights were largely grounded in the “Privileges or Immunities” clause of the Fourteenth Amendment. As libertarian constitutional scholar Randy Barnett argues in his Restoring the Lost Constitution, the accepted meaning of that phrase at the time of the Amendment’s adoption referred to “both natural and inherent rights as well as those particular ‘positive’ rights created by the Bill of Rights.” However, not long after the Amendment’s adoption, the phrase was gutted of this meaning and its expansive protection of liberty. In the Slaughterhouse cases of 1873, the Court adopted a very narrow conception of the Privileges or Immunities Clause that tied it to the rights of “national citizenship” rather than to the more general civil rights that Barnett argues were intended by its authors.
However, the notion that the Fourteenth Amendment still somehow protected those unenumerated rights persisted, and the emphasis shifted to the Due Process Clause instead. The clause was originally understood to refer to the process by which laws were adopted, but in a sleight of hand perhaps necessitated by the Slaughterhouse decisions, later courts took to viewing the clause as referring not just to process but to the content of the laws in question.
More specifically, the Due Process Clause was interpreted as protecting rights of contract, particularly in labor markets. The most famous (or infamous) of the cases from that era was Lochner v. New York (1905), in which the Court overturned a New York law establishing maximum hours for bakers on the grounds that it unconstitutionally interfered with the right of contract of the bakery and its employees. (See David Bernstein’s book Rehabilitating Lochner for much more on this case and its consequences.)
Lochner’s fame now is as the representative case of the whole class of decisions that were to be subsequently rejected during the New Deal as the post–1935 Court sought to find constitutional justification for the greater willingness of Roosevelt and the Congress to intervene in a variety of private economic arrangements. “Lochner-era thinking” is now a pejorative among most constitutional experts, reflecting their belief that using the Due Process Clause to defend substantive unenumerated economic rights stood in the way of the greater economic role for government necessitated by the Great Depression and New Deal.
There were other important cases where the Court used that strategy to defend unenumerated rights in the wake of Lochner, and two of the key ones for our purposes are Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In Meyer, a Nebraska law prohibited schools from teaching a foreign language to students before eighth grade. In Pierce, Oregon passed a law requiring all students to attend public schools. In both cases, the Court found the laws unconstitutional because they infringed on certain basic liberties all citizens were thought to have. Justice James Clark McReynolds wrote for the majority in Meyer,
The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No State shall … deprive any person of life, liberty, or property, without due process of law.” While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
He made that argument even more strongly, and with a clearer libertarian twist, in Pierce:
Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control…. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
McReynolds found in the Fifth and Fourteenth Amendments a set of unenumerated rights that were based on a “fundamental theory of liberty.” Those rights included both economic rights and personal liberties.
So what happened to that line of reasoning that seems so congenial to libertarian thinking? The answer is “the Great Depression,” and we’ll see why in part 2.
