Economic Freedoms and the Constitution (I. Economic Freedoms and the Constitution‪)‬

I would like to defend the traditional conservative view that judges should not second-guess political debates in the name of amorphous rights that do not appear in the text or history of the Constitution. (1) Indeed, that promise was precisely what attracted me to the Federalist Society in law school when I was a bipartisan renegade who, trying to evade the glances of my professors, would sneak into Federalist Society meetings. I received with relish the Federalist claims that liberal justices were short-circuiting all of our most important political debates by making up rights that do not appear in the text of the Constitution (like the right to privacy in Griswold v. Connecticut) (2) and, as a result, that those justices were not interpreting the law but instead making it. I was surprised, therefore, to discover in recent years a libertarian movement that has called into question those Federalist Society axioms. (3) Some libertarians now argue that Lochner is defensible and that a great number of laws and regulations might be struck down in the name of unenumerated rights that have the most tenuous roots in the text or history of the Constitution. (4) Not all conservatives, however, are sympathetic to this invitation to economic judicial activism. There have actually been three separate strains of legal conservatism over the past 30 years: libertarian conservatives, tea party conservatives, and pro-executive power conservatives. (5)