Here’s an excellent article on economic liberty: Michael J. Phillips, The Slow Return of Economic Substantive Due Process, 49 Syracuse L. Rev. 917 (1999). The conclusion makes some excellent points about the future of economic freedom:
if accepted views about the due process clause’s original meaning are correct, the dispute over economic substantive due process’s revival should be a fight between interpretivists and noninterpretivists rather than a liberal-conservative struggle. BMW v. Gore is suggestive here. In that case, Justices Breyer, Souter, O'Connor, and Kennedy joined Justice Stevens’s majority opinion, while Chief Justice Rehnquist and Justices Scalia, Thomas, and Ginsburg dissented. At least two factors may have pushed some of the Court’s liberals to employ substantive due process in Gore. These two factors may also make other liberal judges do the same in future cases. The first is their activist disposition, and the second is the egregiousness of the government behavior that activism is invited to address. If liberals ever do embrace the new economic substantive due process in large numbers, the effects could be salutary. By and large, such people are likely to eschew abstruse economic analyses, strike down only the most palpable abuses of government power, and avoid the controversies in which the Lochner Court embroiled itself. In short, liberals seem well equipped to employ economic substantive due process where it is most needed, while minimizing the standard criticisms long directed at the doctrine.
But another aspect of the Gore decision suggests that this happy consummation is unlikely. Both Justice Stevens’s majority opinion and Justice Breyer’s concurrence spoke only of “due process,” and each tried to invoke standards of procedural fairness. Of course, this self-description utterly fails to persuade. And Stevens’s and Breyer’s refusal to admit what they plainly were doing—applying substantive due process to strike down government action of an economic nature—suggests that liberal antipathy toward the doctrine remains high. After all, embracing economic substantive due process would require that liberals reject some deeply ingrained beliefs and practices. For example, they would have to abandon Progressive myths about the old Court, quit casting a blind eye on government’s economic irrationality, partiality, and predatoriness, and stop winking at pluralist log-rolling. Worst of all, liberals would have to admit that the supposedly malign and ignorant reactionaries on the old Court knew things about business and government that they and their Progressive forbears were unwilling or unable to see.
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