How the Constitution Protects Economic Liberty: Part Three

June 1, 2000

June 2000

How the Constitution Protects Economic Liberty: Part Three

By Dana Berliner

In our past two issues of Liberty & Law, we discussed our most common economic liberty constitutional claims (violations of the equal protection, due process, and privileges or immunities clauses) and two constitutional claims that we bring on behalf of businesses that do interstate sales (violations of the dormant commerce clause and privileges and immunities clause). This issue, we conclude our series on constitutional provisions that the Framers intended to protect economic liberty.

Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble . . . . U.S. Constitution, Amendment I.

Although the purpose of the First Amendment was the protection of speech, not economic liberty, it has become an increasingly important provision in our information economy. Many entrepreneurs make businesses out of selling information, and the First Amendment, as well as other parts of the Constitution, protects those businesses. For example, we successfully represented entrepreneurs who publish books, newsletters, software, and website content about the commodities markets in our case challenging the Commodities Futures Trading Commission’s requirement that publishers obtain licenses. Although our causes of action fell under the First Amendment, the ultimate right vindicated was the right of these publishers to pursue the occupation of their choosing, not the government’s. The First Amendment protects commercial speech too, which is a vital facet of economic liberty.

No State shall . . . pass any . . . Law impairing the Obligation of Contracts. U.S. Constitution, Article I, Section 10.

The Contracts Clause was one of the core protections that the founders envisioned for ordinary business matters. It was supposed to prevent states from passing any laws that would interfere with the freedom of contract. It has, unfortunately, been almost read out of the Constitution by the courts. The lack of a strong Contracts Clause has led, for example, to the dramatic increase in torts litigation, because courts no longer respect contracts protecting businesses from liability. As the Supreme Court appears to be reinvigorating some of these “forgotten” parts of the Constitution, we think the time is right for a Contracts Clause challenge and will be looking for opportunities to bring one.

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

Although the Ninth Amendment obviously was intended to warn courts that citizens have rights that are not enumerated in the Bill of Rights or the Constitution, this amendment also has been virtually read out of the Constitution, although scholarly work in this area has awakened renewed interest in the Ninth Amendment. We see this as an area that may offer litigation opportunities in the future.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. U.S. Constitution, Amendment X.

The Supreme Court in recent years has given more attention to the Tenth Amendment, which prevents the federal government from expanding into legal territory preserved for the states. If a federal law attempted to regulate an occupation, IJ could possibly challenge that law under the Tenth Amendment.

Economic liberty is deeply ingrained in our Constitution, and the Founders intended many overlapping sections to provide protection for occupational freedom. Court cases have tried to read these protections out of the Constitution. We intend to change that. None of us at IJ will rest until the Constitution protects the economic liberty of all Americans.

Dana Berliner is a senior attorney for the Institute for Justice.

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