Clint Bolick - Death Grip: Loosening the Laws Stranglehold Over Economic Liberty

Death Grip: Loosening the Laws Stranglehold Over Economic Liberty — read online for free the complete book (whole text) full work

Below is the text of the book, divided by pages. System saving the place of the last page read, allows you to conveniently read the book "Death Grip: Loosening the Laws Stranglehold Over Economic Liberty" online for free, without having to search again every time where you left off. Put a bookmark, and you can go to the page where you finished reading at any time.

Light

Font size:

↓

↑

Georgia Tahoma Arial Verdana

Reset

Interval:

↓

↑

Bookmark:

Make

1234567...25

D EATH G RIP

The Hoover Institution gratefully acknowledges
P AUL H. AND E LISABETH E. B AUER
for their significant support of this publication.

D EATH G RIP

Loosening the Laws Stranglehold
over Economic Liberty

C LINT B OLICK

HOOVER INSTITUTION PRESS

STANFORD UNIVERSITY | STANFORD, CALIFORNIA

The Hoover Institution on War, Revolution and Peace, founded
at Stanford University in 1919 by Herbert Hoover, who went on
to become the thirty-first president of the United States, is an
interdisciplinary research center for advanced study on domestic
and international affairs. The views expressed in its publications are
entirely those of the authors and do not necessarily reflect the views
of the staff, officers, or Board of Overseers of the Hoover Institution.

www.hoover.org

Hoover Institution Press Publication No. 606

Hoover Institution at Leland Stanford Junior University,
Stanford, California 94305-6010

Copyright 2011 by the Board of Trustees of the
Leland Stanford Junior University
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording, or otherwise,
without written permission of the publisher and copyright holders.

First printing 2011

Manufactured in the United States of America

Cataloging-in-Publication Data is available from the Library of Congress.
ISBN-13: 978-0-8179-1314-4 (cloth. : alk. paper)
ISBN-13: 978-0-8179-1316-8 (e-book)

For Milton Friedman and Bernie Siegan,

two titans in the quest for economic liberty,

with gratitude for their friendship and enduring inspiration.

CONTENTS

INTRODUCTION AND
ACKNOWLEDGMENTS

HERES A CIVICS STUMPER for you: can you name the three protections provided by the Fourteenth Amendment?

Most Americans likely could not identify any of them without additional prompting. But even among people who are possessed of substantial civic knowledge, Id wager the vast majority could name only two: due process of law and equal protection under the law. Theyre pretty famous. Even those who dont know they are part of the Fourteenth Amendment are likely to recognize the terms and know that they are important constitutional rights Americans possess.

Its the Fourteenth Amendments remaining protection that would completely stump most Americans, even if it were listed among multiple-choice options: its the guarantee that states may not abridge the privileges or immunities of citizens of the United States. If you asked the typical person on the streetindeed, even the typical lawyerwhere the provision comes from or what it means, most wouldnt have a clue.

How could two of the three provisions of the Fourteenth Amendment be so well-known while the other is so obscure? Especially when they appear within the same sentence? Deepening the mystery, the privileges or immunities clause is listed first among the trilogy of Fourteenth Amendment protections, suggesting that those who wrote it intended that the provision meant something important. Moreover, among the three protections, it is the only one that on its face protects substantive rightsthat is, privileges or immunities that states may not abridge. By contrast, the other provisions on their face do not impose substantive limits on government power, but rather instruct that states may not infringe upon life, liberty, or property without due process and that they are bound to provide all individuals with equal protection of the laws.

The reason why Americans are familiar with due process and equal protection is that scores of court decisions have struck down laws as violations of those guaranteesincluding some of the most- famous cases of all time, such as Brown v. Board of Education and Roe v. Wade . Law students spend months studying those two provisions, and they are a core focus of the Constitutional Law portion of the bar examination.

By contrast, cases involving the privileges or immunities clause are exceedingly rare and are almost never in the news. As a result, most law students spend a minute or two, if that, studying about the privileges or immunities clause. In fact, they are taught to forget it exists. Indeed, when I was studying for the California bar examination, the instructor told the students that there was only one thing they needed to know about the privileges or immunities clause: that it is never the correct answer to a bar exam question.

How did such a seminal constitutional provision plummet to such jurisprudential depths? Most legal questions have complex answersor at least lawyers who charge by the hour want you to think that they dobut the answer to this one is easy. Only a few years after the Fourteenth Amendment was enacted following the close of the Civil War, the U.S. Supreme Court drained the privileges or immunities clause of nearly all its meaning in one of the worst decisions in the history of American law, the aptly named Slaughter-House Cases .[1]

In that 1873 decision, the Supreme Court by a 54 votehighly unusual in those daysupheld a bribery-procured Louisiana slaughterhouse monopoly that had been challenged by a group of butchers whose businesses were jeopardized. In that decision, the court discovered a new way to amend the Constitution: by judicial fiat. The majority ruled that the privileges or immunities clause added almost nothing to the handful of rights protected against abuse by the states in the original Constitution. By that decision, one of the most important and beneficial products of the Civil Wara revolutionary constitutional provision intended to protect civil rights against oppression by state governmentswas nullified. So while myriad cases since the Fourteenth Amendment was adopted have invoked the equal protection and due process clauses, until recently not a single U.S. Supreme Court decision invoked the privileges or immunities clause to strike down a law.

The Slaughter-House Cases produced many unfortunate consequenc es, several of which will be discussed in the pages that follow. But foremost among them was the evisceration of one of the most sacred and central rights of Americans: economic liberty, the right to pursue a business or occupation free from arbitrary or excessive government regulation. Now, nearly a century and a half later, this right that many Americans deem fundamental enjoys virtually no legal protection whatsoever. If the government tries to take away someones welfare check, a Legal Services Corporation lawyer (your taxpayer dollars at work) can tie the government up in knots. But if the government decides to regulate your business out of existenceeven for the benefit of a competitoryou have virtually no constitutional recourse.

This state of affairs is particularly devastating for people at the bottom rungs of the economic ladder. The most pernicious regulatory barriers to opportunity are those that restrict entry into businesses and occupations that require little formal education or capital. Those regulations hinder meaningful participation in the mainstream economy, as well as upward economic mobility, to millions of economically disadvantaged Americans. At the same time, they limit market entry and inhibit competition at every level of the economy, as sophisticated business or labor interests manipulate government power to protect and enhance their economic positions to the detriment of others.

The privileges or immunities clause was intended to provide legal recourse to individuals affected by such laws. But the clause was killed in its infancy. That is a perversion of American law. The time has come to correct itto restore economic liberty to its rightful place among the most fundamental civil rights.

Next page

1234567...25

Light

Font size:

↓

↑

Georgia Tahoma Arial Verdana

Reset

Interval:

↓

↑

Bookmark:

Make

Similar books «Death Grip: Loosening the Laws Stranglehold Over Economic Liberty»

Look at similar books to Death Grip: Loosening the Laws Stranglehold Over Economic Liberty. We have selected literature similar in name and meaning in the hope of providing readers with more options to find new, interesting, not yet read works.

Kate Bolick

Becoming a Hairstylist

Vincent Phillip Munoz

Religious Liberty and the American Supreme Court: The Essential Cases and Documents

Werner Troesken

The Pox of Liberty: How the Constitution Left Americans Rich, Free, and Prone to Infection: How the Constitution Left Americans Rich, Free, and Prone to Infection

Edward Keynes

Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process

Clint Bolick

Leviathan: The Growth of Local Government and the Erosion of Liberty

Clint Bolick

Grassroots Tyranny: The Limits of Federalism

Clint Bolick

Davids Hammer: The Case for an Activist Judiciary

Clint Bolick

Two-Fer: Electing a President and a Supreme Court

Kate Bolick

Becoming an Interior Designer

Gill

The Political Origins of Religious Liberty

Kate Bolick

Spinster: Making a Life of Ones Own

Timothy Sandefur

The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

Discussion, reviews of the book Death Grip: Loosening the Laws Stranglehold Over Economic Liberty and just readers' own opinions. Leave your comments, write what you think about the work, its meaning or the main characters. Specify what exactly you liked and what you didn't like, and why you think so.