The Constitution and Economic Liberty (Annual Federalist Society National Student Symposium‪)‬

Does the Constitution simply establish a framework for the resolution of political disputes? Is the Constitution neutral with respect to political economy? Justice Oliver Wendell Holmes famously suggested as much in his Lochner dissent. "[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire," he declared. "It is made for people of fundamentally differing views...." (1) Filled with quotable quips, the Holmes dissent frequently is invoked by scholars as though it contained Delphic wisdom. (2) Nonetheless, the dissent has its flaws, and, like the answers of the legendary oracle at Delphi, the opinion is maddeningly ambiguous. The central premise--that the Constitution does not endorse any particular economic theory--seems clear and warrants exploration. In common with other remarks in the Lochner dissent, this point is more asserted than demonstrated. (3) There is a threshold question: Is Holmes referring to the U.S. Constitution or to a theory of what constitutions should contain? Constitutions can serve different purposes. (4) Moreover, Holmes curiously framed the debate by setting up polar opposites, (5) which arguably is a false dichotomy. In fact, the United States never has pursued a strict laissez-faire policy; even when Holmes wrote, lawmakers were enacting a host of economic regulations. (6) The vast majority of these regulatory measures either passed judicial muster or were never challenged. (7) The reference to "paternalism and the organic relation of the citizen to the State," (8) although somewhat opaque, likely points toward the attacks on individualism and claims of economic rights that characterized the Progressive era. (9) Of course, Holmes could be partly correct and partly wrong. That the Constitution affirms neither paternalism nor laissez faire does not establish the broader proposition that the Constitution has no relevance for economic policy.