The Right to Earn a Living: Economic Freedom and the Law.

• Author: Ely, James W., Jr.
• Position: Book review

The Right to Earn a Living: Economic Freedom and the Law

By Timothy Sandefur

Washington, D.C.: Cato Institute.

Pp. xvii, 376. $25.95 cloth.

In The Right to Earn a Living, Timothy Sandefur has authored a provocative defense of economic liberty and a wide-ranging assault on legal doctrines that impede the right to earn a living. His analysis is grounded on the conviction that the right to pursue a trade is an aspect of one's constitutionally protected liberty. To develop his argument, Sandefur examines a wide array of topics--the rise of business corporations, antitrust laws, the contract clause, due process, anticompetitive entry barriers, agricultural price-fixing schemes, the dormant commerce power, commercial speech, expansive tort liability, and regulatory takings of property. Although he clearly recognizes the sorry state of economic freedom in modern constitutional jurisprudence, he calls for courts to safeguard economic rights rather than to reject such claims almost automatically.

Sandefur correctly traces the decline of economic liberty in the United States to the Progressive Era of the early twentieth century. Influenced by socialist ideas, the Progressives condemned the individualistic values embedded in American society. They were prepared to use the coercive powers of government to promote a host of sweeping changes. Progressives sought, among other things, to increase regulation of economic activity and transform social life. They pushed to enhance collective decision making and denigrated traditional individual rights based on natural law. Progressives paid lip service to democracy, but they really desired governance by supposed experts who would in theory devise scientific and nonpartisan policies to shape a better society.

Believing that existing constitutional law exaggerated the significance of property and contractual rights, Progressives took particular aim at the famous Supreme Court decision in Lochner v. New York (198 U.S. 45 [1905]). The ruling simply required the state to justify restrictions on the freedom of individuals to make contracts, but Progressives assailed Lochner in extravagant terms and did much to relegate the decision to lasting disrepute. Notwithstanding a growing body of scholarship that has challenged the stereotype of Lochner fashioned by the Progressives (see, for example, David E. Bernstein, "Lochner v. New York: A Centennial Retrospective," Washington University Law Quarterly 83 [2005]...