Liberty of Contract: Rediscovering a Lost Constitutional Right

by David N. Mayer

This book shines a powerful light on a fundamental constitutional right that the Supreme Court abandoned more than 70 years ago-the freedom of individuals to bargain over the terms of their own contracts. Vital to economic and personal liberty, this right has been continuously diminished by the country's regulatory and welfare state. Beginning in 1897 with the Supreme Court's historic Lochner decision, the Court safeguarded this right for 40 years by declaring that laws that interfered with the freedom of people to bargain over the terms of their own contracts were unconstitutional. Then in 1937, as part of the New Deal, the Court abandoned its protection for the liberty of contract. This book rediscovers this lost right, identifying the foundations and nature of the Court's Lochner-era legal theories and decisions and shatters myths that scholars have created about this era and subject.

Genres: Law

165 pages, Paperback

First published March 1, 2004

Reviews

[Shawn · Rating 5 out of 5]

A concise, engaging, and clear history of this important and fundamental liberty. The depth of the research that is packed into a relatively short book is amazing; indeed, I found myself reading the footnotes as closely as the text itself. The only negative thing I would say about the book is that it ends, understandably, on such a negative note. It is depressing as the full effect of the court's neglect and twisting of such key liberties sets in. I would have liked an epilogue with a look to the future on how to restore the constitutional protection of the liberty of contract. Then again, maybe that future is as bleak as the past.

[Philip Miles]

It's Cato, so it's ideologically-driven and it shows in parts. That said, it displays a much greater understanding of the Lochner Era than the traditional narrative. A great read for understanding early 20th century economic liberty.