Economic Rights And The Constitution | Eastern North Carolina Now

    Publisher's note: The author of this post is Jon Guze, who is the Director of Legal Studies for the John Locke Foundation.

    Over the course of the last two weeks, conservative legal scholar Kurt Lash and libertarian legal scholar Damon Root have treated readers to a lively online debate about how best to interpret Section 1 of the 14th Amendment, which reads:


    Lash started the debate last week when he posted a two-part review of Root's book, Overruled: The Long War for Control of the U.S. Supreme Court. In his review, Lash correctly notes that:


    As a self-styled "federalist," Lash emphatically disagrees. In his view The Slaughterhouse Cases and Carolene Products were correctly decided because:


    Lash supports his view with numerous quotations, including this statement by the author of the 14th Amendment, John Bingham:


    On Monday, Root posted a response in which he provides his own set of historical quotations, including a different one from Bingham:


    And he also makes a case for his view based on historical context:


    Lash posted a rejoinder on Wednesday, in which he says, "Root just digs a deeper hole." Yesterday Root posted a response to that, in which he dismisses Lash's arguments as "tendentious pleading."

    For anyone interested in legal history and political theory all of this is good fun, but from a practical point of view it's also rather worrying. Lash characterizes the conflict between libertarianism and federalism as "a death struggle," and — borrowing a phrase from J.K. Rowling — he says, "Either must die at the hand of the other for neither can live if the other survives."

    To me this attitude seems irresponsible. Economic freedom in America continues to decline, both absolutely and compared to other countries, and if that decline continues the result will be disastrous. It's all very well to debate whether it would be better for economic rights to be defended by the federal courts or by the state courts, but the urgent problem right now is that economic rights are seldom being defended by any courts at all. If libertarians and conservatives want to revive economic freedom, they need to resolve their doctrinal differences and start working together.