Antonin Scalia on economic rights

From 1985 (pdf):

But still, that seemed to me a peculiar way to put it — contrasting economic affairs with human affairs as though economics is a science developed for the benefit of dogs or trees; something that has nothing to do with human beings, with their welfare aspirations, or freedoms.  That, of course, is a pernicious notion, though it represents a turn of mind that characterizes much American political thought.  It leads to the conclusion that economic rights and liberties and qualitatively distinct from, and fundamentally inferior to, other noble human values called civil rights, about which we should be more generous….On closer analysis, however, it seems to me that the difference between economic freedoms and what are generally called civil rights turns out to be a difference of degree rather than of kind.

He worries, however, that conservatives want a non-activist Court, but then want the Court to do what they want on economic issues.  Ultimately Scalia worried that if the Court gave too much credence to economic rights, it would end up with economic rights which are not sensible, and thus he wished to abide by a literally more conservative approach.  He closed his beautiful essay with this:

…the task of creating what I might call a constitutional ethos of economic liberty is no easy one.  But it is the first task.

I disagreed with him on many issues, but his presence on the Court was an important stepping stone for law and economics, and for philosophy as well I might add.

Addendum: “…justices die far more often when a member of the opposite party holds the White House.”


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