Mr. Bolick is a skilled propagandist, but his argument is false (or, to be more precise, a half-truth). I agree that the Slaughter-House cases was one of the worst decisions in our history (second only to Plessy v. Ferguson). But his claim that it has something to do with "economic liberty" is FALSE.
First, a little history. What Bolick, and other (so-called) conservatives really want is a return to the days of the "Lochner" doctrine. This was the idea, most infamously applied in the case of Lochner v. New York that the "liberty" protected by the Due Process Clause (of both the Fifth and Fourteenth Amendments) did not simply refer to physical liberty (i.e.: imprisonment), or to the "liberties" specified in the Bill of Rights, but included something called "liberty of contract". Under this rubric, the courts assumed the power to weigh the wisdom of legislation, imposing their view of what was the best public policy instead of deferring to the legislative branch of government.
The point? If Slaughter-House (1873) prevents the courts from enforcing "economic liberty", how could the Lochner decision been rendered (in 1905)? Thus a fundamental premise of Bolick's book is false.
Second, the "Lochner" doctrine represents the epitome of "judicial activism", something conservatives claim to oppose. Indeed, the whole movement for "judicial restraint" arouse in opposition to that doctrine. The essence of true judicial restraint is that the courts are not supposed to impose their opinion of what is best for the nation in the guise of interpreting or applying the Constitution. Whether legislation is a good or bad idea is entirely a matter for the legislature to decide. Courts applying "Lochner", in the name of "economic liberty" violated that principle constantly. They were the true "judicial activists".
Third, it is hysterically funny to hear conservatives, who normally cry "it's not in the Constitution" when discussing principles like "separation of church and state" (which CAN be found "in the Constitution" in places such as the "no religious test clause", the First Amendment, and in the complete absence of any mention of a god or a religion in its legal provisions) suddenly turn around and claim the Constitution protects some amorphous concept of "economic liberty", when in fact it says NOTHING on that subject.
The closest the Constitution comes is in the Fifth Amendment. Its Due Process Clause forbids depriving someone of their property "without due process of law". But, of course, that's not an absolute prohibition. If due process is provided (through jury trials, for example) ALL your property can be taken away.
The other Fifth Amendment "economic" limitation is on the power of Eminent Domain: the government's power to take your property for a public use (such as building a highway). But, again, that is not an absolute prohibition. The Takings Clause (as it is known) allows the government to take your property, but you must be paid "just compensation".
The Constitution did not enact Herbert Spencer's "Social Statics" (the "bible" of the Social Darwinism movement). Neither did it enact John Stuart Mill's "On Liberty", or Ayn Rand's "Atlas Shrugged". It knows no economic system, either Capitalist or Socialist. It is concerned with POLITICAL rights, not economic ones.
Mr. Bolick's claims are false.
