Hi Prof. Gutzman,
I think I have a good understanding of the judicial revolution that was incorporation as you describe above. My question is specific to the Slaughterhouse cases, where Louisiana butchers were operating under a legally granted monopoly by the state of Louisiana, and the petitioners asked the Supreme Court to declare the monopoly legislation unconstitutional in order to protect their recently-discovered substantive right to the liberty of contract (please correct me if I’m misunderstanding the facts of the case).
I understand that the Court rejected that argument and instead attempted to narrowly define the “one pervading purpose” of the 14th Amendment as restoring the liberty of former slaves to do things like visit the Nation’s capital and enjoy protection on the high seas. I also understand that lawyers and professors who I would broadly define as freedom-friendly will write approvingly of Lochner’s incorporation of liberty of contract/economic liberty but disapprovingly of Slaughterhouse, mostly fighting over the spirit of the 14th amendment.
My question is, for those concerned with understanding the Constitution as ratified, shouldn’t the argument be one of whether the Federal government was delegated the authority to determine the various levels of economic freedom within a particular State? To me, it seems that the argument is instead over whether to read a libertarian or statist bias into the text.
