Market Rights and the Rule of Law: A Case for Procedural Constitutionalism‪.‬

I. INTRODUCTION It is widely believed that a commitment to the rule of law is neutral among theories of rights. On the prevailing view, the classical liberal idea that market rights ought to be protected under the rule of law reflects a contingent substantive belief about which rights there are, rather than a more intimate relationship between the rule of law and market rights. Thus, Joseph Raz writes that "the rule of law ... can hardly be used to oppose in principle governmental management of the economy," as long as such management may "increase freedom" understood as "power of action." (1) By "market rights," I mean the rights to self-ownership, to exclude others from the use of certain external things, and to voluntarily exchange such things. Acknowledgement that individuals have welfare rights (i.e., rights to a minimum provision of welfare goods, such as health care) in addition to, or perhaps competing with, market rights should lead us, according to the prevailing view, to subject a wider realm of rights to the discipline of the rule of law. I disagree. I will argue that the rule of law requires that market rights be strong enough to exclude legal (2) welfare rights as they are upheld in typical welfare states. I will also argue that an important lesson of my exploration of the conflict between welfare rights and the rule of law is that the way in which liberal constitutionalism has addressed the protection of core rights and liberties must undergo major revision.