« Political Compass | Main | Medicare "Competition" Would Kill System »

November 03, 2003

More Bad Legal History

Now Eugene Volokh has jumped into the Lochner fray citing this post by Eric Muller.

According to both of them it's "obvious" that the founders of the Constitution would have assumed that the "the right of a person to grow a vegetable on his farm and sell it to his neighbor" without government interference was fundamental, so of course Lochner was justified.

Which is just bizarre, since economics at the time of the Revolution was a hive of monopolies and all sorts of anti-competitive regulations. The most prominent legal theorist of the time, William Blackstone, thought it obvious that government could require people to grind their flour at a designated mill, since a mill was erected "on condition, that when erected, [all inhabitants] should all grind their corn there only." (3 Commentaries 235). Ferry owners could sue the constructers of bridges as unfair competition against their monopoly rights in this period. (Chadwick v. Property of Haverill Bridge, MA Supreme Judicial Court 1798). American towns regularly regulated the rates charged by mill owners and prohibited building roads in competition with toll roads.

Now, subsequent doctrine in the 19th century might challenge such reflexive regulatory and monopolistic grants, but this casual (and false) historical assumption of laissez-faire economics as somehow being embedded in the Constitution at its founding is what makes conservative legal views so skewed.

Liberals may read rights into the Constitution, but they at least don't claim some imaginary "original intent" for it, then distort history to justify themselves. As I've said, I generally am against both liberal and conservative judicial activism, but this conservative bastardization of history is appalling.

Posted by Nathan at November 3, 2003 02:01 PM