On an episode of Dissed, a podcast about famous Supreme Court dissents with attorneys Anastasia Boden and Elizabeth Slattery, Prof. Hadley Arkes speaks about the moral grounding for economic liberty in our constitutional order. Prof. Arkes cites Justice Stephen Field’s dissent in the 1873 Slaughterhouse Cases as recognizing the natural right of people to their labor. These protections not only entail preventing the government from depriving you of this natural right, i.e. unjustified incarceration, but also include protecting the ability to acquire a livelihood free from government interference. The hosts discuss with Prof. Arkes and other distinguished guests how the Court shifted away from applying strict judicial standards for these issues to leaving this fundamental right open to be infringed by the government. Over the years, the Court has abandoned individuals and their quests to make a living through the economy by shifting the burden of proof from the government to justify the regulations to individuals. Because of the Progressive Era’s emphasis on democracy over liberty, the New Deal policies, and FDR’s many judicial appointments, the Court embraced paternalism and gender stereotypes over individual dignity and autonomy. Prof. Arkes and guests walk the audience through these monumental shifts in jurisprudence, highlighting the stakes of these debates along the way.
Some excerpts from the podcast:
(9:00-9:48): “Those conservative judges, the so-called laissez-faire judges, at the end of the 19th century, were quite willing to uphold legislation that had as a clear purpose the protection of the public safety and health… The people who understood a moral ground for those claims that they write about also understood then the moral limits to the claim for each of our freedoms.”
(13:20-14:20) “Everything is attributable these days to progressivism. We do not take seriously those natural rights that the Founders mention. Woodrow Wilson considered them an 18th century relic and [that] we know something better now: how to manage government…. There is a kind of science of government. It can be done by professionals, social scientists, who are detached from the meaner sides of government…”
(22:20-23:20) Speaking about the different levels of scrutiny used by judges: “Where are those things in the Constitution? I am dubious about the notion that, ah!, for this you need an utterly compelling justification. But, apparently for something else you need a lame justification; [it] will do. A justification is a justification.”
(38:30-39:35): “[There is a belief that] government can engage in central planning. As Hayek pointed out, there is no way that the government could access all the information that is out there. I was at a dinner, years ago, with the judge who was dismantling AT&T. I remember, I leaned in, in a smart-aleck way, and I said, ‘Judge, tell me, do you think the same principles that establish all men are created equal and the categorical imperative also establish somewhere further along the chain of reasoning the right number of divisions in AT&T? How do you know it was seven?'”
(43:25-44:00): “Intellectuals get quite excited over people interfering with publishing and speaking, but ordinary people manifest their freedom by doing ordinary things involved in making a living for their families.”
Full podcast (50 minutes) here.