Meese, Mellor & Rowes on Economic Liberty and the Fourteenth Amendment

Thom Lambert —  25 March 2013

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

These words from the U.S. Constitution’s Fourteenth Amendment lurk behind a great many news stories these days.  For the next two days, the U.S. Supreme Court will consider whether they guarantee a right to same-sex marriage (or, more narrowly, whether they preclude a state from banning gay marriage after it’s been permitted).  The Court will also consider whether similar words in the Fifth Amendment, which applies to the federal government, preclude Congress from denying same-sex married couples the rights that are available to other married couples under federal programs.  Just today, the Court announced that it will consider whether the words preclude a state, by referendum, from eliminating the use of affirmative action in higher education.

But do the words place any meaningful restrictions on regulations of purely economic activity?  For the last two-thirds of a century, most people have assumed they don’t.  Sure, economic regulations are officially subject to Fourteenth Amendment constraints.  But the “rational basis review” courts have applied in scrutinizing economic regulations has generally amounted to  a rule of per se validity.

As Alan Meese explains, a recent Fifth Circuit decision suggests that might be changing, if ever so slightly.  Conservatives may balk (e.g., “you can’t have Lochner without Roe!”), but, as Alan discusses, the Fifth Circuit’s scrutiny was far less stringent than that engaged in by the courts that struck down economic regulations in the so-called Lochner era.  As Chip Mellor and Jeff Rowes explain, it seems the Fifth Circuit was just doing its constitutionally assigned job here.

Thom Lambert

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I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.