William & Mary Law School
I want to begin by frankly acknowledging that the group of scholars participating in the conference is more conservative than the crowd with whom I usually travel. Accordingly, at the outset, I want to say something ingratiating. Then, I will say something provocative. Here is the ingratiating part: economic liberties and property rights, like personal liberties, are fundamental rights secured by our Constitution. In fact, economic liberties and property rights are so fundamental in our constitutional scheme, and so sacred in our constitutional culture, that there is neither need nor good argument for aggressive judicial protection of them. Rather, such liberties are understood properly as "judicially underenforced norms," to use Lawrence G. Sager's term.' As Cass Sunstein would put it, their fuller enforcement and protection is secure with legislatures and executives in "the Constitution outside the Courts.
James E. Fleming,
Fidelity, Basic Liberties, and the Specter of Lochner
William and Mary Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2771