8 Important Books for Non-Lawyers On Constitutional Protection For Economic Liberties and Property Rights
This list comes courtesy of our friend Larry Salzman, an attorney with the Institute for Justice. I have not read most of these books myself, so buyer beware—but I’m definitely adding the rest to my reading list. -Don
- The Guardian of Every Other Right – James Ely. Ely’s history of the relationship of property rights to the Constitution is easy to read and the most informative single volume on the subject.
- Economic Liberties and the Constitution – Bernard Siegan. I strongly recommend the first edition, which is out of print but always available used from Amazon. The second edition was badly edited and added a lot of extraneous new content that does not advance his argument. It is dated (written in 1980), but was a primary source for modern advocates of reviving protection of economic liberties under the Constitution and is still sound in all respects. [From the Amazon description: Siegan “contrasts the benefits of a free, deregulated economy with the dangers of over-regulation and moves towards socialized welfare most specifically as happened during Franklin Roosevelt’s presidency. Supporting his thesis with historical court cases, Siegan discusses the past and present status of economic liberties under the Constitution, clarifies constitutional interpretation and due process, and suggests ways of safeguarding economic liberties.” –DW]
- The Right to Earn a Living – Timothy Sandefur. Sandefur’s book reviews the history of the economic liberties under the Constitution and how Progressive Era thinking influenced the adjudication of economic liberties cases. The book gives special emphasis to occupational licensing.
- How Progressives Rewrote the Constitution – Richard Epstein. This short volume is a concise tour of the history of major legal changes from the 19th through 20th centuries. It is a little heavier on legal doctrine than some other books, but still directed at non-lawyers.
- The Dirty Dozen – Chip Mellor and Bob Levy. This book details 12 Supreme Court decisions that had bad effects on liberty generally, about half of which are related to economics and property rights.
- Rehabilitating Lochner – David Bernstein. As the title suggests, this book deals only with the history of one case, but that case became an epithet during the 20th century to dismiss serious consideration of the protection of economic liberties under the Constitution. Siegan’s 1980 book inspired many scholars to begin reconsidering the actual history of economic liberties under the Constitution and particularly Lochner and Bernstein’s book demonstrates with unanswerable concretes that the disparagement of economic liberties during the 20th century is often sustained by a Big Lie. [My colleague Tom Bowden has written about this book here. –DW]
- Liberty of Contract – David Mayer. No economic liberty has been more maligned than the liberty of contract. David Mayer’s careful discussion of so-called Lochner-Era cases traces the Supreme Court’s understanding of that right and its extinction as a constitutionally protected right by the end of the New Deal.
- Death Grip: Loosening the Law’s Stranglehold over Economic Liberty – Clint Bolick. This quick read discusses, more so than the other books, the Privileges or Immunities Clause of the Fourteenth Amendment as a source of constitutional protection for economic liberties.