Rebuilding the Fourteenth Amendment: the Prospects and The Pitfalls
It has now been more than twenty years since the libertarian community began a concerted effort to rescue the Fourteenth Amendment from the misinterpretations foisted upon it over the course of the previous century. One might quibble over when that effort began,2 but it was certainly underway by 2000, when Institute for Justice litigators prevailed in Craigmiles v. Giles, 3 and for the first time since the New Deal a federal court ruled that a state occupational licensing law was irrational and, therefore, unconstitutional under the Fourteenth Amendment.
Today, almost two decades after Craigmiles, there appears to be a slowly increasing willingness in the legal community to recognize again the constitutional status of economic liberty and private property rights—not just in words,4 but in deeds. It is still too early to offer anything more than tentative optimism.But on the 150th anniversary of that Amendment, there are things to celebrate—as well as new obstacles to address. It is worthwhile at this point to assess the progress of the last two decades in reviving that Amendment’s long-neglected legal protections for economic liberty and property rights, and to consider where the focus of future work should be.
