This Judge Is Wrong About Economic Liberty and the Constitution 

Perhaps Pennsylvania Supreme Court Justice David Wecht ought to read more history, starting with the speeches of the late Rep. John Bingham.


In his May dissent in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Pennsylvania Supreme Court Justice David Wecht berated his colleagues for letting a legal challenge 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.

The Pennsylvania Supreme Court, Wecht complained, is now living in its "own Lochner era"—a reference to a 115-year-old U.S. Supreme Court decision, Lochner v. New York, which struck down a state regulation on the grounds that it served no valid health or safety purpose and violated the economic liberty 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. "Most now recognize that those decisions had nothing to do with the text or history of the Constitution."

Wecht should read more history, starting with the speeches of the late Rep. John Bingham (R–Ohio). In 1866, Bingham served as the principal author of Section 1 of the 14th Amendment, which, among other things, forbids 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" include "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 by those who framed and ratified the 14th Amendment. Even those who opposed the amendment's passage did so because they knew it was designed to protect economic liberty from overreaching state regulation. Rep. Andrew Jackson Rogers (D–N.J.), for example, complained to the House in 1866 that "all the rights we have under the laws of the country are embraced under the definition of privileges and immunities," including "the right to contract." He continued: "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."

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

NEXT: Brickbat: Genghis Who?

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

    I believe that’s in the very definition of the Court, it’s your job to second-guess the actions of the rest of government. And, contrary to what the US Supreme Court seems to think, that includes the government bureaucracy as well as the Legislature and the President. The EPA is not in fact a higher power than Congress itself.

    1. And of course this thing smacks of the “turning the Constitution on its head” sort of thing – that the government is allowed to do anything it’s not specifically prohibited from doing rather than that the government is allowed to do only those things that it is specifically permitted to do. If the Constitution is silent on the issue of economic regulation, the government is not allowed to do it.


      2. He is of the RBG school of jurisprudence – where the Constitution’s purpose is to protect the government from the people.

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      3. I think this point is missing the bigger picture —
        “against a *state* occupational licensing scheme”.

        There isn’t any U.S. Constitution Section that prohibits *STATE* from enacting licensing regulations. That would be up to the STATE’S Constitution.

        1. I don’t think that aspect is being missed here. The issue is whether any such state level enactments violate the US Constitution for being burdensome to the economic liberty of the people.

          Emanations and penumbras being such as they are.

          1. .. I’m not seeing the “economic liberty” in the U.S. Constitution.

            1. Ninth Amendment.

              1. Which it isn’t there either…. If the Federal government is going to force deregulation down upon a state; “prospectively” filling in what “other” rights is – is hardly enough justification.

                I’m all for deregulation but using the courts to do it by mangling “privilege and immunity” with “others” certainly doesn’t pass a reasonable doubt scrutiny test.

        2. We’re in 14th amendment space here, wherein the states are prohibited from violating privileges and immunities. So if from a federal perspective the right to contract is a protected right, the states cannot circumvent it by claiming “states’ rights!” any more than they can make newspapers illegal using the same claim.

          [And, yes, this is routinely violated wrt the 2nd Amendment, but that’s because Heller has not been properly fleshed out and, despite McDonald v Chicago, Amendment #2 is still being treated as a second class right by the lower courts and SCOTUS has, for whatever reason (likely Roberts, again, trying to avoid controversy he can’t control), been too cowardly to stomp on this passive-aggressive dissent. ]

          1. “federal perspective the right to contract is a protected right” — So it’s foundation lies in ‘federal perspective’ not actually the 14th Amendment? Right?

            I didn’t know, “right to contract is a protected right”… I do see the 1st amendment restricting congress from abridging the freedom of speech, or of the press. Frankly; If a State’s Constitution gave them that right; I’m not sure where one could argue the U.S. Constitution forbids it (that would be a worthwhile cause for an Amendment).

            1. LOL, you don’t even know what’s in the 14th amendment.

              1. So spit it out already… Your blame game doesn’t help either one of us now does it.

        3. So you’re saying either you didn’t read or didn’t understand the above article which explains why you are wrong. Or perhaps you didn’t read the 14th amendment which explicitly and unequivocally says: “…No *state* shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

          1. No; I read that just fine but I don’t see where ‘economic liberty’ is a “privileges or immunities” granted in the U.S. Constitution.

            1. Next up; How theft is a “privilege and immunity”…

    2. “The EPA is not in fact a higher power than Congress itself.”

      It was Woodrow Wilson’s wet dream to have a government, of the experts, by the experts and for the experts, a government unrestrained by the “privileges and immunities” of the hoi polloi.

      AOC and Sanders intend to make that dream come true.

      1. … there is no delegated power to the U.S to regulate the environment.

      2. I was assigned Wilson’s Congressional Government, and it was awful how much he wanted to our legislature to mimic the British Parliament. Gutenberg has it, for anyone interested.

  2. So he will be stepping down as judge and go work in a fast food joint right? If he doesn’t think judges are important and shouldn’t do anything he should step down

    1. He doesn’t have a fast food occupational license.

      1. Now that’s funny.

  3. The solution is simple: Vote his sorry ass out.

    1. Give it your best shot, clingers.

      Spend heavily on the campaign.

      1. Irrelevant gibberish.

        1. Asshole troll thinks he wants lots and lots of government regulations to shut us all down. Pretty much a stand in for progressives in general.

      2. Your lust for self-enslavement is astounding.

  4. Apropos of probably nothing, his old man was noted attention whore Cyril Wecht.

    1. Apropos of something, Judge Wecht was one of those in the Democrat majority who said the explicit provision in the Pa. constitution that required the Legislature to draw up congressional districts would be overturned and the State Supreme Court would usurp the authority to draw districts. Funny how the outcome of “second guessing” always depends on whether or not you agree with what provision is being second guessed.

    2. I would rate Wecht the Elder as a failed attention whore, given how few of us have heard of him.

    3. Who?

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  6. Looks like “chipper time” in the Keystone State, no?

  7. Wecht is a biased Democrat who also voted (along with his Democrat colleagues on the PA Supreme Court) to gerrymander Congressional districts in PA in 2017 (to replace those enacted by the PA legislature in 2011 after the 2010 Census), which predictably resulted in Democrats picking up three more Congressional seats in 2018.

    And yet, the PA Constitution specifically authorized the PA Legislature (not the PA Courts) to enact new Congressional districts (and State House and Senate districts) after the Census is taken every ten years.

    Wecht (and other Dems on the PA Supreme Court) also voted to uphold PA Gov. Wolf’s unscientific, totalitarian, draconian and nonsensical lock down limits on indoor and outdoor gatherings, which were subsequently ruled unconstitutional by a federal Judge.

    Per Commenter _XY’s comment above, the only way voters can remove Judges in PA is via mandatory retention elections that are held every ten years after Judges are first appointed or elected.

    But unless a judge in PA commits a crime or other egregious act within a year of their ten year retention vote, the judge is almost certain to win their retention vote (as most voters don’t know or remember the names of most judges).

    1. Wecht is a Democrat partisan, who has donated to Democrat candidates. Nothing wrong with that of course, but he’s obviously putting his politics before the law. He has no issue with a socialist government completely controlling business and production. He’s a good example of why judges who put their politics before the law are bad for our freedom.

      The question I’d like SCOTUS nominees to answer (or Root, or perhaps one of Root’s constitutional lawyer friends) a question about the 9th amendment which states:

      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      Here’s the question:
      Name some of the unenumerated rights the people have, to which the 9th amendment refers.

      I’d say the right to earn a living without the government getting in the way (unless someone is harmed) is one of them. But then what of all the government restrictions on earning a living?

  8. I have long been puzzled by how the 14th amendment got ratified in spite of both pro and con having the same view that privileges and immunities meant the whole kit and kaboodle, not just dribs and drabs; yet the Slaughterhouse cases eviscerated it just a few years later, and no one cared. I know Reconstruction backlash had something to do with that, but it still astonishes me how it could be ratified in the first place if it was that unpopular so soon afterwards.

    1. The 14th, one of the “Civil War Amendments” was ratified by ex-secessionist states `cause if they didn’t they would have trouble getting re-admitted into the Union. Once the locals felt they could get away with governmental economic discrimination against whoever was on the outs with the gubmint, they gave that a try.

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  10. Could perhaps this article be rewritten for us non-attorneys?

  11. Excellent article to add to my collection of source material!

    With none of this being taught in school (even in the bad ole’ days), it took a while to even learn of Lochner.

  12. Saw Damon on Kennedy.

    Never saw a white Damon before.

    1. Ever read about his pal, Pythias? The name is originally Greek.

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