August 31, 2015

ALL THINGS CONSIDERED, this New Republic piece on Randy Barnett and the libertarian constitutional movement is really pretty good. But I thought this part was revealing:

Barnett believes the Constitution exists to secure inalienable property and contract rights for individuals. This may sound like a bland and inconsequential opinion, but if widely adopted by our courts and political systems it would prohibit or call into question basic governmental protections—minimum wages, food-safety regulations, child-labor laws—that most of us take for granted. For nearly a century now, a legal counterculture has insisted that the whole New Deal project was a big, unconstitutional error, and Barnett is a big part of that movement today.

If your entire program is called into question by the notion that individuals have property and contract rights, maybe the problem is with your program.

And to the extent that, as believed by many, the Supreme Court’s eventual accommodation to the New Deal was the product of duress in the form of FDR’s court-packing scheme, then isn’t that accommodation, in fact, illegitimate?

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