Economic Liberty and the Constitution: An Introduction

Pretending to believe what no serious person would believe—for example, that Louisiana licenses florists in order to protect the public from the physical dangers of unlicensed floristry—makes judges look silly and undermines public confidence in the integrity and efficacy of judicial review. Judicial engagement provides the way out of this morass by calling on judges to treat every constitutional case as a genuine search for the truth regarding the government’s ends and means. though Supreme court precedent appears to preclude that approach in many settings, including particularly occupational freedom and other economic liberties, it is still possible to position cases in such a way that judges are able and inclined to do what they have a proud tradition of doing in other areas: enforce constitutional limits on government power with an even hand and an unwavering commitment to the rule of law.

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