The Corner

Economic Liberty and The Courts

William Mellor writes: “Without realizing it, liberals and conservatives are working from opposite ends of the political spectrum, under opposing rationales, to reach the same end: expanded government power.” Liberals don’t care about economic liberty, only “personal” liberty, while conservatives don’t want judges overriding legislative decisions, and therefore the courts aren’t protecting economic liberty.

It’s an interesting argument. I’m not sure how unwitting this collaboration is. Let’s say you’re a conservative who believes, say, that the Founders did not intend for the federal courts to override (some) state infringements of economic liberty. Wouldn’t you be happy that on this point, at least, liberals, for whatever reason, came down in the right place?

I’d have to know a lot more history on this point to venture a judgment about whether that hypothetical conservative is right. But I don’t think the argument that Mellor makes–that politicians don’t have the proper incentives to protect economic liberties and therefore judges should–works. On his own account, judges don’t appear to have felt any incentive to protect economic liberties either.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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