Friday, February 25, 2011

Debate: Economic Freedoms and the Constitution (initial arguments)

In a debate that far-surpassed the already lofty expectations, Professor Randy Barnett of Georgetown Law and Professor Jeffrey Rosen of George Washington Law took competing positions on whether economic liberty is protected by the Constitution.

Professor Barnett began first and advocated for the position that the Constitution protects economic liberty, or the right to acquire, use, and possess private property. First, Professor Barnett looked to the Ninth Amendment and the text that reads enumerated rights "shall not be construed to deny or disparage the others retained by the People." Through historical evidence, Profess Barnett attempted to show that most States and American citizens at the time of the Founding understood the Ninth Amendment to embody natural rights, including life, liberty, property, pursuit of happiness, safety, among others. Next, Professor Barnett looked to the Reconstruction period and the 13th Amendment. The prohibition of slavery and involuntary servitude implied an economic liberty. The Amendment meant to protect the freedom of not only movement and self, but the right to buy, sell, and own property. However, the Supreme Court's narrow reading of this Amendment in the Slaughter-House cases and other subsequent cases wrongly ignored the economic liberty it hoped to protect. Finally, Professor Barnett looked at the history and development of the Fourteenth Amendment and the Supreme Court's "gutting" of the Privilege and Immunities Clause from the Amendment. In the Slaughter-House cases, the majority of the Court relegated the P&I Clause to a future of functional irrelevancy. Here, in this clause, Professor Barnett sees the natural rights that Congress and the Amendment meant to protect. In the end, Professor Barnett argues the natural right of economic liberty has been ignored and disparaged, but not yet repealed. It can still be found in the text and history of the Constitution and thus is relevant to modern jurisprudence.

In Professor Barnett's view the Court should force Congress and legislatures to articulate its basis for enacting laws and regulations. The 14th Amendment, the Ninth Amendment, and the Constitution as a whole meant to empower the Court to enforce economic liberty and it is the Court's role to enforce the parameters of the Constitution. It would be arbitrary and irrational to allow legislatures to act under the guise of health and safety when that is not their true aim.

Professor Rosen responded with a call to resist Professor Barnett's libertarian interpretive approach and look to the traditional conservative model of judicial deference to the political process. This model of deference resists replacing the will of the political majority (or at least the legislature) with that of the ideological preferences of the judiciary. Since judges interpret the law, rather thank make it, the Court should avoid craving out unenumerated, made-up, amorphous rights that are not articulated in the Constitution. Professor Rosen proposed a framework of three divergent "conservative" approaches to constitutional interpretation:

(1) the traditional view of judicial restraint and deference - Justices Jackson, Frankfurter, Holmes, and Scalia were discussed as models of this approach. Judge J. Harvie Wilkinson III, the moderator of our second panel, was also discussed as a model of this interpretative philosophy. (I would recommend looking to Justice Felix Frankfurter's dissent in Baker v. Carr or Professor Alexander Bickel's The Least Dangerous Branch for a more detailed discussion of this approach and skepticism of judicial review generally. Also see the works of Professors Larry Karmer, Larry Sager, Cass Sunstein, or Mark Tushnet)

(2) the libertarian view (identified with Professor Barnett) - this view sees certain natural rights of personal autonomy, property, and contract that the governemnt cannot infringe upon. This often leads to the questioning of regulatory laws, hour and wage laws, the Federal Reserve, and environmental regulation among other laws. This view often protects both economic liberties and social liberties (potentially sexual freedoms, gay marriage, abortion). See also Professor Richard Epstein and the majority opinion in Lochner v. New York.

(3) the "tea party wing" - this view shares suspicion of broad governmental power and believes in enforcing the rights of property and economic liberty, but departs with libertarians on social issues. Professor Rosen identifies Justice Thomas with this approach.

Professor Rosen doubts Professor Barnett's reading of the Thirteenth and Fourteenth Amendments. In his opinion, the 14th Amendment meant for Congress to enforce and regulate economic rights. Furthermore, the Court is unable to easily identify or define the original author's meaning of these amendments. The natural right interpretation is dubious, but regardless the public no longer accepts that approach and it would be a bold, activist move for the Court to reinsert such a view. Professor Rosen referenced the healthcare law as a battle ground for this issue in the near future. In the end, Professor Rosen aligns himself with Judge Wilkinson, Justice Frankfurter, and this vision of judicial restraint despite claiming to hold a political policy preference for many of the libertarian positions. Professor Barnett questions this fidelity to the political process.

Overall, this was a stimulating argument that opened the Symposium up on a very strong note. The debate was marked by sharp critique and dissent, but avoided ad hominem attack and both speakers maintained a strong personal affection and respect. In the end, the debate touched on a historical debate that has tremendous impact on modern jurisprudence. The Justices of the Supreme Court may very well be forced to engage in this same debate in the potential challenge to Healthcare Reform.