How Libertarians Are Changing Conservative Views on Economic Liberty and the Constitution

The Cornell Law Review says libertarians are reshaping the conservative legal movement.

This month marks the 110th anniversary of the U.S. Supreme Court's ruling in Lochner v. New York, in which the Court struck down an economic regulation on the grounds that it violated the 14th Amendment right to liberty of contract. In the early decades of the 20th century, Lochner served as a key precedent in a variety of cases which limited government power, including the Supreme Court's 1917 decision invalidating a Jim Crow residential segregation law. In 1937, however, in one of the signal triumphs of New Deal governance, the Supreme Court reversed course and rendered Lochner a dead letter, declaring that henceforth the courts would no longer offer any judicial protection for liberty of contract in the face of regulatory state action.

Not surprisingly, that New Deal judgment remains widely popular on the legal left. What is surprising perhaps, is that this judgment also happens to be quite popular on the legal right. Indeed, from Chief Justice John Roberts to the late Robert Bork, many of modern America's top conservative legal thinkers have attacked Lochner and revealed their own broad intellectual harmonies with the New Deal forces that overturned it.

Why are these conservatives hostile to Lochner? Here's the answer supplied by Robert Bork. The problem with Lochner, Bork argued, is that it involved the judicial protection of an individual right—liberty of contract—that appears nowhere in the text of the Constitution. And as far as Bork was concerned, when "the Constitution does not speak," we are "all at the mercy of legislative majorities." The Supreme Court, Bork said, must respect the will of those majorities and defer to their legislative enactments.

Today's libertarians, by contrast, reject the Bork-New Deal approach. As the libertarians see it, the Constitution does protect unenumerated rights, as the language of the 9th Amendment makes evident. Furthermore, as the libertarians argue, once you take a careful look at the text and history of the 14th Amendment, including that amendment's origins in the free labor philosophy of the anti-slavery movement, it becomes equally evident that the concept of economic liberty has deep roots in the constitutional firmament.

For the past several decades, libertarians and conservatives have battled over these issues, with libertarians urging conservatives to rethink their longstanding embrace of Progressive and New Deal doctrines. Has the tide finally started to turn in the libertarians' favor? In a provocative new article forthcoming from the Cornell Law Review, George Washington University law professors Thomas Colby and Peter Smith argue that the answer to that question is yes. "We believe that conservatives are ready, once again, to embrace Lochner—although perhaps not in name—by recommitting to some form of robust judicial protection for economic rights."

Colby and Smith credit this conservative transformation to the influence of libertarian scholars, law professors, and writers (including me), whose legal and historical interpretations have slowly but surely taken hold within the broader ranks of the conservative legal movement. As they put it:

In the early 1980s conservative support for Lochner-like judicial protection for the freedom of contract was limited to a relatively small number of libertarian scholars who for the most part operated on the fringe of the conservative legal universe. In the last decade, however, a new wave of libertarian scholars—operating closer to the mainstream of conservative legal thought—has argued anew for a revival of Lochner's aggressive scrutiny for regulations that interfere with economic liberty.

Thanks to these libertarian efforts, the authors conclude, "the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing."

Are Colby and Smith right about that? Here's one good reason to think they are.

Back in the 1980s, the Pulitzer Prize-winning journalist and nationally syndicated columnist George Will was an outspoken proponent of Robert Bork's brand of judicial conservatism. More recently, however, Will has taken a different view of the matter. Contra Bork, Will now lambasts the "judicial abdication" of the New Deal period and calls for the revival of Lochner v. New York. "Conservatives clamoring for judicial restraint, meaning deference to legislatures," Will argued last year, "are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic."

That, in a nutshell, is the libertarian critique of both Robert Bork and the New Deal Court. That this critique is now being voiced by one of America's most influential conservative writers is a telling indication of the libertarian legal movement's growing stature.

For more on the clash of constitutional visions among libertarians, conservatives, and progressives, check out my new book on the subject, Overruled: The Long War for Control of the U.S. Supreme Court.