I highly recommend that free market aficionados attend or listen to the Heritage Foundation’s October 7 program on economic liberties and the Constitution. This event, hosted by my colleague Paul Larkin, will feature presentations by constitutional litigator Clark Neily of the Institute for Justice and two brilliant market-oriented Constitutional scholars – Professors Randy Barnett and David Bernstein. The program will highlight recent legal thinking that may reinvigorate efforts to rein in rent-seeking and restore a proper respect for constitutionally-guaranteed economic liberties. If you cannot watch the program live, it will be available shortly thereafter for viewing on the Heritage Foundation’s website.
The cause of limiting governmental incursions on constitutionally-protected economic freedoms is far from hopeless. As a Heritage Foundation Special Report released yesterday explains, recent federal court decisions are beginning to put real teeth into the “rational basis” test for reviewing protectionist state laws under the Due Process and Equal Protection Clauses of the Constitution. For example, several courts have held that mere protectionism, standing alone, does not provide a sufficient rationale to justify a law under rational basis review. Also, there may be some potential for striking down highly restrictive laws based on “changed circumstances,” for applying the First Amendment to excessive limitations on speech imposed by occupational licensing regulations, or for invoking antitrust to strike down inadequately supervised or articulated anticompetitive statutes.
Stay tuned for future work by Heritage scholars on economic liberties.