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Economic Freedom in the Alito Draft

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I read the draft Supreme Court decision on Roe v. Wade. I was surprised that the draft so quickly prejudges economic liberty, which I thought of as a topic still open for debate. I wrote the essay below. I haven’t been able to interest any of the usual places that publish my op-eds, so, with the decision likely to come next week, here it is. 

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Dear Justices: As you overturn Roe, don’t prejudge economic liberty! Economic, social and political freedom are intertwined. Reform of the administrative state is America’s next great challenge. Leave us the chance to argue for liberty and privacy to transact, communicate, and work as we wish. 

Justice Alito’s draft opinion affirms that the Constitution includes privacy and liberty among unenumerated rights. Good. To counter hysteria that other precedents would soon fall, he explicitly affirms them. Good. Of “the right to marry a person of a different race, … the right to marry while in prison,… the right to obtain contraceptives, … the right to reside with relatives, …the right to make decisions about the education of one’s children, … the right not to be sterilized ,… to undergo involuntary surgery, forced administration of drugs,…[the] right to engage in private consensual sex acts,…the right to marry a person of the same sex,’’ Justice Alito writes that overturning Roe, “…does not undermine them in any way”  (p.32).

And then he—or perhaps overenthusiastic clerks—takes a step too far. The draft also reassures the left that their economic agenda is not at risk, by explicitly affirming the radical jurisprudence of the late New Deal. 

The draft opinion savages  Lochner v. New York as  “Freewheeling judicial policymaking,” a “discredited decision,” (p. 14) and an “erroneous decision’’ on the scale of the infamous Plessy v. Ferguson (p.64). Lochner examined whether the state of New York could restrict hours of work. The 1905 court found such limitations interfere “with the right and liberty of the individual to contract.” (George Will’s Conservative Sensibility tells the story well.)  The draft praises West Coast Hotel (1937), which overruled an earlier case “which had held that a law setting minimum wages for women violated the “liberty” protected by the fifth amendment.” Economic liberty gets sarcastic scare quotes. Piling on, “West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty rights against state and federal health and welfare legislation,” including decisions “holding invalid a law banning contracts forbidding employees to join union,” or “holding invalid laws fixing the weight of loaves of bread,” (p. 36) and more. 

The separation between social and sexual liberty and privacy and extensive government intrusion into the most minute economic affairs makes no logical sense. The draft tries and fails. The draft claims that “appeals to a broader right to autonomy…could license fundamental rights to illicit drug use, prostitution, and the like.” But we can talk about Uber drivers’ right to set their own hours without demanding legal prostitution. We might not even want to prejudge a fundamental right to “illicit” drug use, which in that phrasing includes violating the FDA’s latest diktats. The draft states that “what sharply distinguishes” other rights from abortion is the “life of an unborn human being.” But even drug use and prostitution do not involve unborn life. 

The draft denies unenumerated rights not “deeply rooted in history and tradition.” (p. 11) That is an interesting addition to the Constitution’s text, and I imagine legal scholars might want to debate that limitation. The framers could have added it, but did not do so. This is its central argument. It extensively describes legal restrictions on abortion in the 19th century, when the 14th amendment was written, to document that an individual right to abortion is not “deeply rooted in history and tradition.” 

But by that standard, the Court must then allow that history and tradition, our “scheme of ordered liberty,” long favored economic liberty and privacy. The same history of 19th century law would not find an inkling of the Department of Labor’s intrusive regulations or the FDA’s baby formula fiasco. Economic regulation was novel, not economic liberty. And many people today believe that political and social liberty cannot exist without economic liberty. Start with Friedman’s Capitalism and Freedom. 

The draft proclaims that economic liberty is subject to majoritarian rule, where personal and sexual liberty is an individual right. Again citing West Coast Hotel, “the court .. overruled decisions that wrongly removed an issue from the people and the democratic process.” (p. 40.) But economic liberty must be an individual right, protected from the whims of the majority, which is even more inclined to use law to enrich one at the expense of the other than it is to force sexual conformity. We don’t vote whether a city should grab a house and turn it in to a mall or a homeless shelter. Well, we do, but we shouldn’t. To function, property rights must be an individual right. 

In needlessly asserting one narrative history of economic rights while making a decision on abortion, the draft gratuitously denies the possibility of another history: The Lochner-era court did hold to the Constitution’s protections and the country’s history and traditions, until the political pressure and Roosevelt’s court-packing threats caused the court to back down, and to write constitutional gibberish, rather than wait for the consensus that constitutional amendment would bring. 

I support an individual Constitutional right to abortion. But I also support the court overturning Roe v. Wade. Many thoughtful people on the left agree (for example, Yale Law’s Akhil Reed Amar on Common Sese). My policy preferences should not matter in any of my arguments today, but I think they do. If more of us were able to separate our policy preferences from judgement whether the court or state legislatures should decide an issue, as a matter of practicality and keeping the country together, we might have a healthier debate. 

Abortion needs to go back to the states. The court never considered a clear right, instead trying to write the compromises only legislatures can broker. How about trading some abortion restrictions for greater funding for contraceptives, adoption, child care and so forth? Only a legislature can do that, and produce the buy-in that such compromises produce. I won’t be totally happy, you won’t be totally happy, but we can stop tearing the country apart. Yes, “far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division” (p. 6) because  “Those on the losing side…could no longer seek to persuade their elected representatives to adopt policies consistent with their views.” (p. 40) More importantly, after Roe, they must try to persuade their fellow citizens to elect different representatives, and politicians will have to recalibrate their positions. It’s easy to be extreme when we know nothing can happen. Both parties are now the dog that caught the car. 

Most of all, abortion has poisoned Court politics and public debate for 50 years. The Court, and we who argue about what the court should do, and what kind of justices to appoint, can finally move on to languishing great questions of our government. 

Prime among those is how to reform our dysfunctional government by executive order and imperious bureaucracy. Wickard v. Filburn could be the new Roe v. Wade. Filburn grew wheat on his own farm to feed his own animals. The 1942 Court held that the federal government’s power to regulate interstate commerce extended to forcibly stopping Filburn from doing so, in order to drive up the price of wheat. The Court affirmed it in Gonzalez v. Raich (2005), with even Antonin Scalia concurring. The Court decided that growing pot in your own backyard for your own private medicinal purposes, legal in a state, can be banned by the federal government as interstate commerce. This case lies at the foundation of the administrative state. Really? Is this beyond dispute? 

For years, Justices before the Senate loudly said they would not prejudge Roe v. Wade, so as not to prejudge cases before hearing them. Yes, it is wise for the Court to say loudly that this decision does not imperil to contraception and interracial marriage, if only to reveal how many critics don’t bother to read decisions. But please, don’t needlessly prejudge economic freedom. Sometimes, silence is golden. 

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