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Courts Should Protect Economic Liberty Rights As Originally Understood

The prohibition on taking a person’s liberty without due process of law is enshrined in the Constitution’s Fifth and Fourteenth Amendments. But what does this mean? Does “liberty” only mean not being imprisoned, as some people have claimed, or is it far broader than that? In a new post on the Federalist Society’s blog, I argue that liberty, as originally understood by our Founders, was far broader than lack of imprisonment. It was understood to include a variety of economic liberty rights, such as the right to earn an honest living in a lawful profession, as well as other rights described by the Founders as civil liberty. That is the right to do those acts that are not harmful to others.

This means that for the government to legally deprive you of your rights to freedom and liberty, it must be through a court proceeding that finds you specifically have violated the law. Imprisonment is an example of having your liberty taken, but it isn’t the only example. Consider the case of Fred Korematsu, who was prohibited (by a 1942 executive order of President Franklin Roosevelt) from living in California, western Oregon, or western Washington outside of small camps. Congress then passed a statute that made ignoring that order a crime. Korematsu was convicted of violating this statute after a trial and was sent to prison. The Supreme Court upheld this travesty, but the dissent correctly realized this violated not only the right to equal protection, but the right to due process as well. Korematsu was given a trial before he was sent to jail, so putting him in jail didn’t violate his right to due process. But Korematsu’s liberty was taken from him when the executive order and the statute were passed that prohibited him from moving around freely (in other words, taking his liberty), without first being provided a judicial process to prove he violated the law.

A core liberty right recognized by the Founders and English jurists was the right to earn an honest living in a lawful profession. And yet today, all too often, the Securities and Exchange Commission and other federal agencies take away this right without a court finding the individual has violated the law. Current precedent of the Supreme Court, such as the Slaughter-House Cases (1873), allow the government to grant a monopoly to individuals in a given profession. This is precisely what the government was prohibited from doing under English common law, which was enshrined in our Constitution’s Fifth and Fourteenth Amendment, and such liberty rights should be protected today.

Read the full post, “Defending Substantive Due Process on Originalist Grounds,” here.