In 1938 the U.S. Supreme Court ruled that a federal law prohibiting the interstate shipping of filled milk violated neither the commerce clause nor the due process clause of the Constitution. What is best remembered about that opinion is “Footnote Four,” which has influenced American jurisprudence ever since.
Writing for the majority in United States v. Carolene Products Company, Justice Harlan F. Stone set out the doctrine that some kinds of freedom are more equal than others. Specifically, certain government acts warrant a higher judicial scrutiny than other kinds. The latter are to begin with a presumption of constitutionality. Harlan wrote:
There may be 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.
In other words, when the Court decides that a government regulation lies beyond an explicit constitutional prohibition, for example, one found in the Bill of Rights, the court should presume it is constitutional and not subject to the strict scrutiny that regulations lying within some explicit prohibition deserve. The footnote is better understood when we see the text it is attached to:
[T]he 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, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. [Emphasis added.]
That is, the Court will simply assume members of Congress had a good reason to regulate some aspect of commerce unless it can be shown otherwise. When it comes to economic activity, there is to be no presumption of liberty as there is in other matters.
Hence the bifurcated system of freedoms—noneconomic and economic—we labor under today.
Advocates of freedom know this doctrine is based on an error and invoke the indivisibility of freedom in response to it. But too often they undercut their own case by talking about . . . economic freedom.
The Indivisibility of Freedom
I realize this phrase may be meant only to emphasize the depreciated aspect of freedom, but as free-market advocates know, intentions don’t nullify effects. Whenever one says “economic freedom,” one implies that other kinds of freedom exist. That of course does not imply that some freedoms are more equal than others, but it certainly opens the possibility. That can’t happen if we insist that freedom is indivisible.
The case for the indivisibility of freedom is not hard to make when one remembers that there are no economic ends. There are only ends, namely, the values we pursue in the course of our lives. I recall first hearing Thomas Sowell make this point about 30 years ago. He writes in Basic Economics:
One of the last refuges of someone whose pet project or theory has been exposed as economic nonsense is to say: “Economics is all very well, but there are also non-economic values to consider.” Presumably, these are supposed to be higher and nobler concerns that soar above the level of crass materialism.
Of course there are non-economic values. In fact, there are only non-economic values. Economics is not a value in and of itself. It is only a way of weighing one value against another.
There are only non-economic values. If that is so, then there is no economic freedom. There is only freedom. Full stop.
No Economic Purposes