# Think Tank > U.S. Constitution >  Is "Liberty of Contract" a Constitutional Right?

## familydog

The concept of "liberty of contract" is very popular and highly regarded in conservative and libertarian circles. While it was around well before, the 1905 Supreme Court case _Lochner v. New York_ crystallized this notion as a Constitutional right. Yet was the court correct? If we are to take a strict interpretation of the Constitution, does that leave room for "liberty of contract"? Here are two sides of the issue:

Judge Andrew Napolitano in his book _Constitution in Exile_ argues that court was correct in their ruling:

"Rooted in a Natural Law mind set, the Supreme Court clearly viewed the protection of the freedom of contract as a God-given right. So much so that the _Lochner_ case, in which the Court fully articulated the 1905 doctrine of liberty of contract (which was introduced in chapter six) came to define the time.

In _Lochner_, the Supreme Court declared unconstitutional a New York State law that limited the number of hours a baker could work. How dare the state in the land of opportunity try to steal the liberty of a laborer to work and a small businessperson to employ him? That is precisely what the New York legislature attempted. And this theft is precisely what goes on everyday in the twenty-first century America. But the _Lochner_ court, one hundred years ago, would have none of it!

The court held that the 'state had no reasonable ground for interfering with liberty by determining the hours of labor for individuals who are free to work as they choose.' It found that the law interferred with freedom of contract, it did not serve a valid police power, and it thus violated the Fourteenth Amendment's Due Process Clause because it took away property (the fruits of the agreement) without a trial.

Firmly, the Court established that the 'freedom, or liberty of contract was a basic, fundemental right protected by the liberty and property provisions of the Due Process Clause of the Fifth and Fourteenth Amendment.' As a natural right, freedom of contract recieved the greatest judicial protection by the Constitution." --p 108.

Contrast this opinion with that of law professor Christopher Schmidt in his article "Revitalizing the Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating Substantive Due Process."

"In Lochner v. New York, n12 an owner of a bakery was convicted under a New York state law that prohibited employers from requiring or allowing their employees to work in excess of a sixty hour work week, or more than ten hours a day. n13 The Court overturned the conviction finding that entering into an employment contract was a substantive right under the Fourteenth Amendment and constituted a protected liberty interest. n14 The Court's legal trick turned the procedural command of the Due Process Clause - that life, liberty, or property could not be taken without sufficient procedural safeguards - into a substantive form of due process wherein unenumerated rights could be based. n15 

The Court's assertion that the right to enter into an employment contract was protected by the Fourteenth Amendment was inaccurate because the amendment does not explicitly provide for such a protection. n16 The Court "manufactured a constitutional right ... out of its substantive formulation of due process." n17 The decision, devoid of a textual foundation, stands as a startling example of judicial intervention into the political choices of the legislature; thus, it serves as a cautionary tale of the inappropriate exercise of judicial power. n18 Lochner effectively immortalized the substantive due process mechanism that is still the standard for analyzing claims regarding unenumerated constitutional rights today. n19"

Any thoughts? I'm more inclined to believe Schmidt's argument. I find it ironic that a court case that so many strict Constitutionalists hold so dearly, is arguably the case that cemented the downward spiral of unenumerated rights to the Constitution.

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## Truth Warrior

How about a human right?

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## familydog

> How about a human right?


Not under the Constitution.

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## noxagol

How about we don't need to look to the constitution every time to find our rights as this just makes them privileges. It's not a right because it's in the Constitution, its in the Constitution cause its a right.

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## hypnagogue

> How about we don't need to look to the constitution every time to find our rights as this just makes them privileges. It's not a right because it's in the Constitution, its in the Constitution cause its a right.


 That depends on whether you believe in Natural Rights or Social Contracts.

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## familydog

> How about we don't need to look to the constitution every time to find our rights as this just makes them privileges. It's not a right because it's in the Constitution, its in the Constitution cause its a right.


I understand where you are coming from. The point is, we live under a constitution. Ron Paul makes it a point that we "follow the rule of law and obey the Constitution." Therfore, if we do this and take a strict interpretation of it, the idea of "liberty of contract" cannot be considered a Constitutional right, as the Lochner court declared. As it stands, the only way it can be, is if another amendment is created establishing it as a right.

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## Bradley in DC

Yes, the contracts clause of the Constitution was the most common issue before the court in the first half of the republic.   It was always deemed an individual right that states couldn't abrogate even before the 14th Amendment and the incorporation doctrine.

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## familydog

> Yes, the contracts clause of the Constitution was the most common issue before the court in the first half of the republic.   It was always deemed an individual right that states couldn't abrogate even before the 14th Amendment and the incorporation doctrine.


Then why did the court make the ruling that it did? If liberty of contract was already in the Constitution, I don't see why the courts had to manufacture it from the 14th Amendment.

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## demolama

> Then why did the court make the ruling that it did? If liberty of contract was already in the Constitution, I don't see why the courts had to manufacture it from the 14th Amendment.


because courts never give the wrong rulings

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## Truth Warrior

> Not under the Constitution.


What is, under the Constitution ( not counting the grudingly *later added* Bill of Rights )?

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## Truth Warrior

> How about we don't need to look to the constitution every time to find our rights as this just makes them privileges. It's not a right because it's in the Constitution, its in the Constitution cause its a right.


*Where is that human right,* in the US Constitution?

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## familydog

> because courts never give the wrong rulings


I'm just saying. If liberty of contract is blantantly obvious in the Constitution, you'd think they just would have pointed to the contract clause instead of going through this elaborate scheme of making up an unenumerated right under the 14 Amendment. The court obvious agreed with the notion of liberty of contract, so they had ample reason to make the rationale as fool-proof as possible.

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## demolama

well considering most contractual obligations are done within one of the 50 states and the original interpretation of the federal Constitution limited its scope so that the issues of the states were not their authority... its gonna be hard pressed to find something thats they had no authority to deal with to begin with written in the text of the federal Constitution

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## therealjjj77

> The concept of "liberty of contract" is very popular and highly regarded in conservative and libertarian circles. While it was around well before, the 1905 Supreme Court case _Lochner v. New York_ crystallized this notion as a Constitutional right. Yet was the court correct? If we are to take a strict interpretation of the Constitution, does that leave room for "liberty of contract"? Here are two sides of the issue:
> 
> Judge Andrew Napolitano in his book _Constitution in Exile_ argues that court was correct in their ruling:
> 
> "Rooted in a Natural Law mind set, the Supreme Court clearly viewed the protection of the freedom of contract as a God-given right. So much so that the _Lochner_ case, in which the Court fully articulated the 1905 doctrine of liberty of contract (which was introduced in chapter six) came to define the time.
> 
> In _Lochner_, the Supreme Court declared unconstitutional a New York State law that limited the number of hours a baker could work. How dare the state in the land of opportunity try to steal the liberty of a laborer to work and a small businessperson to employ him? That is precisely what the New York legislature attempted. And this theft is precisely what goes on everyday in the twenty-first century America. But the _Lochner_ court, one hundred years ago, would have none of it!
> 
> The court held that the 'state had no reasonable ground for interfering with liberty by determining the hours of labor for individuals who are free to work as they choose.' It found that the law interferred with freedom of contract, it did not serve a valid police power, and it thus violated the Fourteenth Amendment's Due Process Clause because it took away property (the fruits of the agreement) without a trial.
> ...


The very phrase, "Constitutional Right" fails to understand what the intent of the Constitution was.  It was intended to bind this new federal government.  Not say what our rights are.  We have innumerable unalienable rights granted by God and the Constitution may specify some of them in the first 10 amendments but by no means is this an extensive list.  The right to contract is an inalienable right granted by the Creator and only he has the right to limit it or take it away.  Not our government.  Nor are they responsible for determining what is unlawful by the Creator and exacting punishment for Him.  They are only instituted by us to secure our rights(the people who instituted this government, their posterity, and naturalized citizens).  Anything that would involve the federal government interfering with or infringing upon our rights would be reason to alter or abolish that government.

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## T-K

I firmly believe all humans are born with rights. Nothing pisses me of more when someone calls a right a privilege

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## torchbearer

There are no such things as constitutional rights.
The consitution wasn't written to give us rights, it was written to give the government certain powers/privileges.

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## Danke

> There are no such things as constitutional rights.
> The consitution was written to give us rights, it was written to give the government certain powers/privileges.


Don't you mean, "The consitution _wasn't_ written..."

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## torchbearer

> Don't you mean, "The consitution _wasn't_ written..."


wasn't.
typo.

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