This Judge Is Wrong About Economic Liberty and the Constitution

A flawed argument for judicial passivity in cases of government regulation.


Does the U.S. Constitution protect economic liberty, such as the right to work in an occupation of one's choosing free from unreasonable government regulation? Pennsylvania Supreme Court Justice David Wecht thinks not. Writing in dissent last week in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Wecht faulted his colleagues in the majority for their "judicial intrusion into the realm of legislative value judgments" after that court allowed a legal challenge to proceed against a state occupational licensing scheme. "I cannot endorse a constitutional standard that encourages courts," he declared, "to second-guess the wisdom, need, or appropriateness" of duly enacted economic regulations.

In Wecht's telling, the Pennsylvania Supreme Court is now living in its "own Lochner era," a reference to the U.S. Supreme Court's decision in Lochner v. New York (1905), which struck down a maximum working hours law on the grounds that it served no valid health or safety purpose and violated the right to liberty of contract protected by the 14th Amendment. "For many years, and under the pretext of protecting 'economic liberty' and 'freedom of contract,' the Supreme Court routinely struck down laws that a majority of the Court deemed unwise or improvident," Wecht wrote of Lochner and several related cases. "Most now recognize that those decisions had nothing to do with the text or history of the Constitution; they were based upon nothing more than the policy preferences of the justices who signed on to them."

Respectfully, I would encourage Justice Wecht to read some more legal history. He might start with the speeches of Rep. John Bingham (R–Ohio). In 1866 Bingham served as the principal author of Section One of the 14th Amendment, which, among other things, forbids the states from passing or enforcing laws which violate the privileges or immunities of citizens. As Bingham told the House of Representatives, "the provisions of the Constitution guaranteeing rights, privileges, and immunities" includes "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil."

That view was widely shared at the time by those who framed and ratified the amendment. What is more, even those who opposed the passage of the 14th Amendment agreed that it was designed to protect economic liberty from overreaching state regulation—indeed, that was a big reason why they opposed the amendment in the first place. Rep. Andrew Jackson Rogers (D–N.J.), for example, complained to the House that "all the rights we have under the laws of the country are embraced under the definition of privileges and immunities….The right to contract is a privilege….I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities." The "right to contract" was of course later secured by the Supreme Court in Lochner.

Contrary to Justice Wecht's flawed assertion, economic liberty most certainly does have something to do with the text and history of the Constitution.

Related: "Lochner Isn't a Dirty Word."

NEXT: The Pandemic Is a Reminder That Many Regulations Are Both Costly and Unnecessary

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  1. Let’s not forget the 1st amendment to freedom of peaceful assembly.
    While it seems it is been supported for political action only ( such as protest), I see no reason that it may not apply to assemblies that are economic in nature such as doing business free from state intervention

    1. Economic associations are fantastic but, unfortunately, the bigots in the Republican party have used those rights to limit access to businesses based upon the color of a person’s skin. The Constitution guarantees that all people are created equal and it is absolutely part of the role of government to ensure that racism and bigotry are snuffed out of our American society.

      1. What are you talking about? The Constitution doesn’t limit private actions. It limits government action. So no, the Constitution has no power to force people to not be discriminatory when they hire, make friends, create clubs or get married. Where would anyone get the idea that people can’t discriminate?

        1. Actually it does both

          “Where would anyone get the idea that people can’t discriminate?”

          The civil rights act and 50 years of jurisprudence

          Go away now idiot.

          1. You should go back and reread all of that as none of it disallows individuals from discriminating – all of it is limiting the government and its actors from doing so.

            1. You should go back and reread what I quoted, and then understand that I was answering the question asked and not stating a position.

              Jesus fucking Christ are you ALL aspies?


              1. It hurts doesn’t it?

                Realizing that you shot off your dicksucker only to now realize both my original point and my explanation of your misunderstanding are totally correct, and that you look stupid.

                1. You’re an idiot – you answered the question “what makes you think people cannot discriminate” citing legal precedence, none of which disallows discrimination by individuals.

                  If that’s not what you meant, by all means rephrase, rewrite, clarify, add on – but don’t think for a second I’m the one looking stupid.

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          2. The civil rights act is not part of the constitution.

            1. Did I say it was?

              He asked where they got the idea.

              1. It hurts doesn’t it?

                Realizing that you shot off your dicksucker only to now realize both my original point and my explanation of your misunderstanding are totally correct, and that you look stupid.

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              2. You answered and replied to a post discussing the fact the US Constitution is not a limit on individuals by saying it was.

                So yes, you said it was – your reply “actually it does both”.

                You just cannot stop looking stupid can you?

        2. Do you honestly believe laws against murder are “unconstitutional”?
          If yes, well enjoy your lala land. Every framer of the constitution would have called you an idiot.
          If no, then you have to admit the constitution does limit private actions if those private actions serve to deprive others of their constitutional rights.

  2. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations.

    You’re a Supreme Court Justice – it’s your whole fucking job to second-guess the Legislature and the Executive, you retard. Has this dumb fucker ever joined an opinion that declared a duly-enacted law to be unconstitutional? If the Legislature passed it and the Governor signed it, they obviously didn’t think it was unconstitutional so who the hell are you to declare that it is?

    1. Obviously it’s different when money is involved. Money is magic.

  3. “Economic liberty” is a pleasant euphemism for economic slavery. The supposed “right to work” is just the right to be fired without cause. American workers deserve stronger employment laws, similar to public school teachers and police officers, in my honest opinion. We are better than this!

    1. The right to be fired without cause is just another name for freedom of association.

      1. But, your business? You didn’t make that!

    2. Nope, when you don’t have the fear of fucking up and getting fired then you will suck as an employee.

      Only socialists and faggotards like AmSoc would think we should live in a government protected society from cradle to grave.

  4. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations.

    The founding fathers would be so glad to hear they pissed off the largest empire in the world just so this douchebag could lecture us that unelected bureaucrats have only the public interest and safety in mind when they regulate eyebrow threaders.

    1. The idiot also doesn’t understand that the “duly” part of that sentence includes whether the legislation is in accordance with Constitutional limits on government action.

  5. Was Fox News in on the coverup of the murder of #CarolynGombell? What did Hannity know? Many fine people are saying he knows the full story. #JusticeForCarolyn

    1. >QAnon
      Are you a troll account or a parody account?

      1. A parody of a troll account?

        1. Nope deffinatly a troll of a parody acount

          1. A parody of a troll of a parody account.

  6. >>they were based upon nothing more than the policy preferences of the justices who signed on to them

    Wecht thinks he’s the guy who gets it.

  7. Sorry Damon, the Privileges and Immunities Clause does not mean what Rep. John Bingham (R–Ohio) thought it meant, or what anyone thought it meant 150 years ago. It means, in practice, what the current Supreme Court (or various lower courts) says it means. We are governed by the rule of judges, not the rule of law. Someone will always be interpreting the law, and judges now decide what the law means. Do not expect Roberts or Alito or Kagan or Sotomayor or Ginsburg or Breyer to agree with your preferred interpretation, or any Circuit Court, either.

    1. You are correct. The constitution self defines it’s meaning as whatever the supreme court says it means. Which has the effect of allowing some evil fuckers to do whatever they (oops I mean Trump) want.

  8. “As the interned American citizens of Japanese descent learned, the Bill of Rights provided them with little protection when it was needed.” ~ Glenn Harlan Reynolds
    No Treason
    The Constitution of No Authority
    by Lysander Spooner

    The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:

    We, the people of the United States (that is, the people THEN EXISTING in the United States), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves AND OUR POSTERITY, do ordain and establish this Constitution for the United States of America.
    It is plain, in the first place, that this language, AS AN AGREEMENT, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc.

  9. If the violation is administrative, then it ain’t the Constitution where the remedy will be found. The administrative/regulatory state didn’t EXIST then even when it is explicitly allowed. Hayek was one of the few I’ve seen who wrote in English about how that developed over the 19th century. And the only one I’ve read who described how it was the Germans of all people who actually put those sorts of judicial review processes in place in a workable form (called Rechtsstaat) before they then proceeded to abandon classical liberalism. Swedes still have something that may be similar – in the form of a legal framework to protect against ‘ministerial rule’ (ministerstyre).

    But from what I understand, the sort of change that would be required here is:
    a)take all the administrative judicial review OUT of the executive branch
    b)set up a part of the judiciary that is EXCLUSIVELY focused on administrative cases. That is not at all deferential – that is totally focused on protecting the individual from the administrative state – but that is also knowledgeable to not have to be deferential
    c)if precedent or common law doesn’t provide enough legal basis to protect the individual, then that is up to the legislature to create some corpus of administrative law that DOES protect the individual
    d)stop putting the legal burden on appeals/SC. They don’t know enough about those specifics to ever be anything but deferential and its not like they are otherwise running an empty docket.

    1. Surprisingly coherent and specific for a Jeffy post. Who’d you steal it from?

    2. “…That is not at all deferential – that is totally focused on protecting the individual from the administrative state – but that is also knowledgeable to not have to be deferential…”

      So we don’t have the right Top Men in charge?
      Thanks, you cowardly piece of lefty shit.

  10. “…”I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations…”

    Yep, the courts are but a minor office in the legislative branch.

  11. I cannot endorse a constitutional standard that encourages courts to second-guess the wisdom, need, or appropriateness. electrician washington dc

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