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Published online by Cambridge University Press: 05 August 2009
Recent cases suggest the Supreme Court may be moving toward a new era of open-ended judicial oversight of economic regulation. Viewed in strictly legal terms today's efforts to infuse economic individualism into the Constitution take a form different from that popularized in the laissez-faire era at the turn-of-the-century. The takings clause of the Fifth Amendment rather than the due process clause of the Fourteenth appears to be the favored vehicle. But, in the past and in the present, those who have insisted that the Constitution creates a significant check on the government's ability to regulate private economic activity consistently have relied upon two interrelated ideas to support their view. First they take the Framers' interest in protecting property to be an endorsement of a free market economic system. Secondly they argue that, because the very idea of liberty in the American tradition has included property, their version of individualism is reflected in constitutional jurisprudence from the time of John Marshall to at least the 1930s. This article explores the extent to which these two factors actually support a theory that the Constitution creates a broad and open-ended prohibition or limitation on government involvement in economic matters. Further, it will suggest that the relationship between liberty and property in the American constitutional tradition must take into consideration a third factor—the public ingredient of private property.
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36. Ibid., pp. 282–91 (Johnson); p. 261 (Washington).
37. Ibid., pp. 259–61 (Washington); pp. 282–84 (Johnson); pp. 299–302 (Thompson).
38. Ibid., p. 345 (Marshall dissenting).
39. Ibid., pp. 322–27 (Trimble).
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67. Munn v. Illinois, 94 U.S. (4 Otto.) 113 (1877).
68. Ibid., pp. 125–26,130.
69. See, In re Jacobs, 98 N.Y. at 107; Lochner v. New York, 198 U.S. 45,53 (1905).
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86. Ibid., p. 2893, citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,415 (1922), Holmes, dissenting.
87. Ibid., pp. 2894–95, 2900.
88. Ibid., p. 2903, Kennedy, concurring; see also, p. 2894.
89. Ibid., p. 2908, Blackmun, dissenting.
90. Ibid., p. 2925, Stevens, dissenting.
91. Ibid., p. 2906, Blackmun, dissenting.
92. Ibid., pp. 2924–25, Stevens, dissenting.
93. Ibid., p. 2900.
94. Ibid., p. 2895 note 8.