Brooklyn Law Review

Volume 81 | Issue 1 Article 1

2015

Is the Constitution Laissez-Faire?: The Framers,

Original Meaning, and the Market
Stephen M. Feldman

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 Is the Constitution Laissez-Faire?
THE FRAMERS, ORIGINAL MEANING, AND THE
MARKET

Stephen M. Feldman†

INTRODUCTION

Did the Constitution create a laissez-faire government-

market system? This question is crucial to constitutional
jurisprudence today. Conservatives often assert that originalism
is the best (or only) method of legitimate constitutional
interpretation. Originalism supposedly requires judges to uphold
either the original public meaning of the Constitution or the
Framers’ intentions.1 On the Roberts Court, Justices Scalia and
Thomas are avowed originalists, though the other conservative
Justices are not averse to invoking originalist arguments or
joining originalist opinions.2 Empirical studies show that the
Roberts Court, because of its conservatives, is the most pro-
business Court since World War II.3 Both of these judicial

† Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct

Professor of Political Science, University of Wyoming. This article is derived from papers I
presented at the 2013 and 2014 Yale Law School Freedom of Expression Scholars
Conferences, the 2013 University of Virginia Constitutional History Conference, and the
2014 Law and Society Conference. I thank the workshop participants at these conferences
for their suggestions and am especially grateful to Vincent Blasi, Mel Urofsky, and
Thomas Healy for their detailed comments on my papers. I also appreciate the comments
received from Alex Tsesis, Mark Tushnet, Richard Delgado, and Evan Zoldan.
1 Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611,

611-12, 620 (1999); John O. McGinnis & Michael B. Rappaport, Original Interpretive
Principles as the Core of Originalism, 24 CONST. COMMENT. 371, 374 (2007). Focusing on the
original public meaning is referred to as “new originalism,” while focusing on the Framers’
intentions is “old originalism.” Stephen M. Feldman, Constitutional Interpretation and
History: New Originalism or Eclecticism?, 28 BYU J. PUB. L. 283, 285 (2014). In many cases,
though, including in Citizens United v. FEC, 558 U.S. 310 (2010), the Justices do not clearly
identify which form of originalism is being followed.
2 See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576-626 (2008) (relying

on originalism to interpret the Second Amendment); see also Antonin Scalia, The Rule of
Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989) (advocating for originalism).
3 See Lee Epstein et al., How Business Fares in the Supreme Court, 97 MINN.

L. REV. 1431 (2013) (quantitative study of all postwar business-related cases); see also
MARK TUSHNET, IN THE BALANCE: LAW AND POLITICS ON THE ROBERTS COURT 187-214
(2013) (evaluating evidence of the Roberts Court’s pro-business bias); Corey Ciocchetti,
The Constitution, the Roberts Court, and Business: The Significant Business Impact of the
2011-2012 Supreme Court Term, 4 WM. & MARY BUS. L. REV. 385 (2013) (emphasizing

1
2 BROOKLYN LAW REVIEW [Vol. 81:1

characteristics—originalism and a pro-business orientation—

were on display in Citizens United v. FEC.4 In a five-to-four
decision, the conservative bloc invalidated statutory limits on
corporate (and union) spending for political campaign
advertisements.5 The majority opinion concluded with an
originalist flourish: “There is simply no support for the view that
the First Amendment, as originally understood, would permit the
suppression of political speech by media corporations.”6 Citizens
United is not unique. In case after case, the conservative Justices
act like market fundamentalists, protecting corporations and the
marketplace from government regulation even in free-expression
cases like Citizens United.7
Numerous scholars support the Court’s constitutional
approach. Renowned libertarian Richard Epstein recently
published an exhaustive defense of “the original classical liberal
constitutional order,” as he describes it.8 Following a “guarded
originalist view,” Epstein argues that “classical liberal theory”
animated the drafting of the Constitution.9 That is, according to
Epstein, the Framers drew on classical liberal theorists such as
John Locke and Adam Smith and thus made a normative
commitment to “the twin pillars of private property and limited
government.”10 When Epstein says “limited government,” though,
he means minimal government, because government, to him, is
no more than “a necessary evil.”11 Epstein maintains that the

how the Roberts Court strongly supported business in the 2011-2012 Term). For general
rankings of the Supreme Court Justices based on political ideology, see LEE EPSTEIN ET
AL., THE BEHAVIOR OF FEDERAL JUDGES 106-16 (2013), which includes comparisons with
the Martin-Quinn scores (accounting for changes over time), and the Segal-Cover scores
(quantifying Court nominees’ perceived political ideologies at the time of appointment). See
Martin Quinn-Scores, U.C. BERKELEY L., http://mqscores.berkeley.edu/ [http://perma.cc/2
BTK-8DFC] (last visited Dec. 16, 2015); Segal-Cover Scores, STONY BROOK U.,
http://www.stonybrook.edu/commcms/polisci/jsegal/QualTable.pdf [http://perma.cc/DU5R-
YLZ9] (last visited Dec. 16, 2015) (data drawn from Jeffrey A. Segal & Albert D. Cover,
Ideological Values and the Votes of U.S. Supreme Court Justices, 83 AM. POL. SCI. REV.
557, 557-65 (1989), updated in LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT:
THE POLITICS OF JUDICIAL APPOINTMENTS (2005)).
4 Citizens United v. FEC, 558 U.S. 310 (2010).
5 Id.
6 Id. at 353.
7 E.g., Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1426 (2013) (limiting class

actions against corporations); Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011)
(invalidating restriction on corporate use of health data); Citizens United, 558 U.S. 310
(invalidating restrictions on corporate campaign expenditures); Exxon Shipping Co. v.
Baker, 554 U.S. 471 (2008) (limiting punitive damage awards against corporations);
Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007) (restricting sexual
discrimination lawsuits against corporations); see FRED BLOCK & MARGARET R. SOMERS,
THE POWER OF MARKET FUNDAMENTALISM 3 (2014) (explaining market fundamentalism).
8 RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL CONSTITUTION 6 (2014).
9 Id. at 45.
10 Id. at ix; see id. at 3, 7, 582 (invoking Locke and Smith).
11 Id. at 6.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 3

“Constitution embraces a theory of laissez-faire,” under which the

government can perform functions such as maintaining peace and
defending against foreign enemies, but little else.12 The
predominant purpose of the constitutional system, Epstein
insists, is to protect “competitive markets”13 and the individual’s
right “to enter and exit” those markets.14 Economic competition is
the “highest good,”15 and “unregulated market forces” engender
“desirable social equilibrium.”16
The conservative Justices and scholars like Epstein are
wrong. Although one may try to construct a philosophical
argument that would justify a laissez-faire or libertarian political-
economic system,17 history does not suggest that our Constitution
created such a system. To the contrary, an examination of the
historical evidence reveals that the crux of the Framers’
constitutional scheme was balance: balance between a private
sphere and a public sphere—that is, between economic markets
and government action.18
This article explores that historical evidence. Part I
explains the political context of the Constitutional Convention
and ties that context to the Framers’ twin goals of protecting
liberty and pursuing the common good. It considers the operation
of the state governments during the 1780s and how the flaws in

12 Id. at 582. Government should not intrude into individual decisions as to “what

property to own, food to buy, jobs to offer or accept, or wages to pay or receive.” Id. at 25.
13 Id. at 37.
14 Id. at 7.
15 Id. at 43.
16 Id. at 38. Randy Barnett is another constitutional law scholar who maintains

that the Framers enshrined a libertarian approach in the Constitution. See generally RANDY
E. BARNETT, RESTORING THE LOST CONSTITUTION (2004); RANDY BARNETT, THE STRUCTURE
OF LIBERTY (1998).
17 E.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974) (presenting a

philosophical defense of libertarianism).

18 Throughout this article, I will, for the most part, use the terms “Framer”

and “delegate” interchangeably to refer to those present at the Constitutional

Convention. Although 55 delegates participated at some point during the Convention,
only 39 would sign. Several delegates left early because they did not like the
Convention’s general direction (toward a new Constitution). Of the delegates who
contributed heavily to the discussions, only Edmund Randolph and George Mason of
Virginia and Elbridge Gerry of Massachusetts refused to sign. RICHARD BEEMAN,
PLAIN, HONEST MEN 359-68 (2009). Additional helpful sources on the founding include
the following: BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN
REVOLUTION (1967); PAULINE MAIER, RATIFICATION (2010); FORREST MCDONALD,
NOVUS ORDO SECLORUM (1985); JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE
LIMITS OF AMERICAN CONSTITUTIONALISM (1990); J.G.A. POCOCK, THE MACHIAVELLIAN
MOMENT (1975); THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND
OTHER ORGANIC LAWS OF THE UNITED STATES (Ben: Perley Poore ed., 2d ed. 1878)
[hereinafter POORE]; GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC,
1776-1787 (1969) [hereinafter CREATION]; GORDON S. WOOD, THE RADICALISM OF THE
AMERICAN REVOLUTION (1991) [hereinafter RADICALISM]. For the most complete record
of the Constitutional Convention, see THE RECORDS OF THE FEDERAL CONVENTION OF
1787 (Max Farrand ed., 1966 reprint of 1937 rev. ed.) [hereinafter FARRAND].
4 BROOKLYN LAW REVIEW [Vol. 81:1

state governments tempered the Framers’ republican idealism

with a more pragmatic approach to politics. Part II, emphasizing
one side of the Framers’ balance, focuses on their commitment to
the principles of republican-democratic government. Part III,
emphasizing the other side of the balance, discusses the Framers’
strong concern with protecting property rights in light of their
contemporaneous understanding of the market.19 Discussions of
slavery at the Constitutional Convention are particularly
revealing in this regard. Part IV examines the Framers’ goal of
maintaining a balance between government power and individual
rights—between public and private spheres. To elaborate on how
the Framers understood the relationship between the government
and the marketplace, a discussion of Alexander Hamilton’s Report
on Manufactures is useful.20 And given how the laissez-faire view
of the Constitution has led to decisions such as Citizens United,
Part V focuses on the freedoms of speech and press,21 including
the Framers’ understanding of free expression and the
subsequent adoption of the First Amendment. In conclusion, this
article asks whether we should praise or blame the Framers for
their treatment of government-market relations.
Two caveats are in order at the outset. First, as should be
evident in this article, I believe that originalist evidence—
historical materials that illuminate the Founders’ intentions and
original public meanings—can and should inform constitutional
interpretation. But contrary to the claims of many originalists,
those historical materials cannot provide fixed and objective
constitutional meanings.22 Second, no evidence suggests that the
Constitution’s original public meaning differed from the Framers’

19 Helpful sources discussing economic development in general (or in the

United States) include the following: JOHN KENNETH GALBRAITH, A HISTORY OF

ECONOMICS (1987); ROBERT HEILBRONER & WILLIAM MILBERG, THE MAKING OF
ECONOMIC SOCIETY (10th ed. 1998); ROBERT HEILBRONER & AARON SINGER, THE
ECONOMIC TRANSFORMATION OF AMERICA: 1600 TO PRESENT (4th ed. 1999); RONALD E.
SEAVOY, AN ECONOMIC HISTORY OF THE UNITED STATES FROM 1607 TO THE PRESENT
(2006). More general histories that contain helpful discussions of economic
developments include the following: LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN
LAW (3d ed. 2005); KERMIT L. HALL, THE MAGIC MIRROR (1989); MORTON J. HORWITZ,
THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977).
20 Alexander Hamilton, Report on Manufactures, 3 ANNALS OF CONG. 971 (Joseph

Gales ed., 1834) (Communicated to the House of Representatives, Dec. 5, 1791).

21 See STEPHEN M. FELDMAN, FREE EXPRESSION AND DEMOCRACY IN AMERICA

50-51 (2008) [hereinafter FREE EXPRESSION] (describing in detail the interrelated

historical developments of free expression and democracy).
22 Feldman, supra note 1. Lawrence Solum refers approvingly to “the fixation

thesis” as a key originalist point. Lawrence B. Solum, We Are All Originalists Now, in
CONSTITUTIONAL ORIGINALISM: A DEBATE 1, 4 (2011); e.g., Randy E. Barnett, Interpretation
and Construction, 34 HARV. J.L. & PUB. POL’Y 65, 66 (2011); Keith E. Whittington, The New
Originalism, 2 GEO. J.L. & PUB. POL’Y 599, 611 (2004). For a more complex
conceptualization of originalism, see JACK M. BALKIN, LIVING ORIGINALISM (2011).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 5

intentions vis-à-vis government-market relations. Thus, insofar

as there might sometimes be a distinction between old originalism
(emphasizing Framers’ intent) and new originalism (emphasizing
public meaning), it is irrelevant with regard to the crucial issue of
laissez-faire economics.23 As this article explains, the United
States had not yet developed a capitalist economy at the time of
the framing and ratification. Thus, unless the majority of
Americans were economic visionaries who foretold a capitalist
future, the Framers’ understanding of the economic marketplace
would have been at least as advanced as that of their
contemporaries. In other words, the original public meaning of
government-market relations, as understood from the perspective
of the American majority, would not have been any more advanced
than the Framers’ understanding of government-market relations.

I. EXPERIENCE DEFEATS IDEALISM

A. The Corruption of State Governments in the 1780s

American state governments of the 1780s were built on

two interrelated premises. First, Americans believed themselves
to be especially virtuous and fully committed to liberty, equality,
and republican government.24 They were, in other words, an
exceptional people.25 Second, if the people were virtuous, and the
state legislatures represented the people, then government should
inevitably pursue the common good. The early state constitutions
embodied this republican enthusiasm.
The experiences of the 1780s, however, led many political
elites—men like James Wilson, Alexander Hamilton, and James
Madison—to question these premises. From their perspective,
demagogues had won far too many state elections. And all too
often, democratic majorities and their officials had used
government power to satisfy their own interests, thus contravening
the common good and frequently threatening the property rights of
others.26 That was the lesson of Shays’ Rebellion in Massachusetts,
where indebted landowners sought government refuge for money

23 See Feldman, supra note 1, at 285-86 (distinguishing old originalism from

new originalism).
24 In the civic republican tradition, virtue can be understood “as a quality of

the personality.” POCOCK, supra note 18, at 484.

25 See SACVAN BERCOVITCH, THE PURITAN ORIGINS OF THE AMERICAN SELF

(1975) (tracing the tradition of American exceptionalism to the Puritans).

26 CREATION, supra note 18, at 409-13; see, e.g., James Wilson, In the

Pennsylvania Convention (Nov. 24, 1787), in 3 FARRAND, supra note 18, at 138, 141-42,
appendix A (lamenting “licentiousness” of citizens and government problems). I have
modified some quoted passages from the Convention notes purely for stylistic purposes. For
instance, I spell out abbreviations.
6 BROOKLYN LAW REVIEW [Vol. 81:1

owed.27 After a state militia had put down the armed rebellion,
the debtors nonetheless elected enough new legislators that the
Massachusetts assembly enacted many of the debtors’ desired
reforms. John Jay wrote to George Washington: “Private rage for
property suppresses public considerations, and personal rather
than national interests have become the great objects of attention.
Representative bodies will ever be faithful copies of their originals,
and generally exhibit a checkered assemblage of virtue and vice, of
abilities and weakness.”28
State government corruption appeared to threaten both
republican government, on the one hand, and liberty and property
rights, on the other. When individuals and factions pursued their
own interests rather than the common good, then the government
could take property arbitrarily. Debtor relief laws, such as those
at stake in Shays’ dispute, appeared to victimize creditors.29
Moreover, the state and national governments still carried heavy
debts from the Revolutionary War. As the ineffective governments
could not pay their debts, public securities lost value and public
credit vanished.30 In short, property and other forms of wealth
were no longer secure. Without wise or virtuous government
support and protection, the economy would fail alongside the
government.31 From the Framers’ viewpoint, history proved that
every society eventually decayed. If the delegates to the
Constitutional Convention failed to restructure American
government, then the United States would prematurely die—or at
least, the delegates feared as much. Early at the Constitutional
Convention, Edmund Randolph emphasized “the difficulty of the
crisis, and the necessity of preventing the fulfillment of the

27 GEORGE R. MINOT, THE HISTORY OF THE INSURRECTIONS, IN MASSACHUSETTS,

IN THE YEAR 1786, AND THE REBELLION CONSEQUENT THEREON (1788); LEONARD L.
RICHARDS, SHAYS’S REBELLION (2002); DAVID P. SZATMARY, SHAYS’ REBELLION (1980).
28 Letter from John Jay to George Washington (June 27, 1786), reprinted in 1

GREAT ISSUES IN AMERICAN HISTORY 80, 81 (Richard Hofstadter ed., 1958) [hereinafter
GREAT ISSUES]; see BEEMAN, supra note 18, at 16-18 (describing perceptions of Shays’
Rebellion); CREATION, supra note 18, at 410-13 (discussing Shays’ Rebellion).
29 MCDONALD, supra note 18, at 177-79; NEDELSKY, supra note 18, at 30;

CREATION, supra note 18, at 403-25.

30 MCDONALD, supra note 18, at 94-96, 138-42; NEDELSKY, supra note 18, at

125-26. Continuing disagreement about the best means for handling state and national
debts would provoke political divisions in the early 1790s. JAMES ROGER SHARP,
AMERICAN POLITICS IN THE EARLY REPUBLIC 34-38 (1993).
31 See THE FEDERALIST No. 44 (James Madison) (tying limits on state

government powers to economic concerns) (note: all citations to The Federalist Papers
are to the Project Gutenberg e-text of The Federalist Papers, located at
http://www.gutenberg.org/cache/epub/18/pg18-images.html [http://perma.cc/AV8A-2DFK]).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 7

prophecies of the American downfall.”32 The nation had reached a

crucial juncture.33

B. The Framers’ Pragmatic Response to Experience

In April 1787, a month before the Constitutional

Convention would begin in Philadelphia, Madison wrote a
memorandum, Vices of the Political System of the United States,
which explained, point by point, the problems that had arisen
under the Articles of Confederation—with its provisions creating
a weak national government and relatively strong state
governments.34 Over and over, Madison emphasized what had
been “found by experience” or “proved” by “fact and experience” in
the operation of the state governments—experiences that he
contrasted with the utopian ideals of “Republican Theory.”35 The
drafters of the Articles, because of their “inexperience,” reliance
on civic republican ideals, and “enthusiastic virtue,” had placed
“mistaken confidence” in the “good faith [and] honor” of state
legislatures.36 But through the 1780s, state legislatures had
produced “vicious legislation” and “injustice.”37 Too many citizens
and elected state officials had pursued “base and selfish
measures,” even though they often “masked [such measures with]
pretexts of public good.”38 Madison, for instance, specifically
criticized Rhode Island for printing paper money without
considering the common good.39
Madison also largely composed the so-called Virginia Plan,
which would provide the initial framework for further discussions
at the Constitutional Convention.40 When Randolph—a more
polished speaker than Madison—introduced the Plan at the
outset of the Convention, he emphasized the events of the 1780s,

32 1 FARRAND, supra note 18, at 18 (May 29, 1787).

33 See id. at 255 (June 16, 1787) (Randolph); id. at 282-83, 291 (June 18, 1787)
(Hamilton); BEEMAN, supra note 18, at 3-21 (explaining the Framers’ perception of a
national crisis); STEPHEN M. FELDMAN, AMERICAN LEGAL THOUGHT FROM
PREMODERNISM TO POSTMODERNISM: AN INTELLECTUAL VOYAGE 61-65 (2000) (discussing
Framers’ premodern or cyclical view of history); GERALD STOURZH, ALEXANDER
HAMILTON AND THE IDEA OF REPUBLICAN GOVERNMENT 38 (1970) (discussing Founders
who feared decay); CREATION, supra note 18, at 413-25 (describing sense of crisis).
34 JAMES MADISON, VICES OF THE POLITICAL SYSTEM OF THE UNITED STATES

(1787), reprinted in JAMES MADISON: WRITINGS 69 (1999) [hereinafter MADISON,

WRITINGS]; see BEEMAN, supra note 18, at 27-29.
35 MADISON, WRITINGS, supra note 34, at 71, 76-77.
36 Id. at 72.
37 Id. at 75.
38 Id. at 76.
39 Id. at 77.
40 JAMES MADISON, THE VIRGINIA PLAN (1787), reprinted in MADISON,

WRITINGS, supra note 34, at 89.

8 BROOKLYN LAW REVIEW [Vol. 81:1

particularly how “[n]one of the [state] constitutions have provided

sufficient checks” against the democratic excesses of insufficiently
virtuous citizens.41 Then, throughout the rest of the Convention,
the delegates repeatedly referred to their experiences in the
1780s. John Dickinson went so far as to proclaim that
“[e]xperience must be our only guide,”42 while Elbridge Gerry
admitted that “experience” had demonstrated that he had “been
too republican heretofore.”43 In other words, the delegates were
especially wary, as Dickinson put it, of “those multitudes without
property & without principle” who might threaten property rights
through the democratic process.44 To be sure, Benjamin Franklin
and Gouverneur Morris recognized that the wealthy as well as
the poor could form factions bent on government corruption.
“[T]he possession of property increased the desire of more
property,” Franklin said, and “[s]ome of the greatest rogues he
was ever acquainted with, were the richest rogues,” noted
Morris.45 But the unequivocal weight of the delegates’ sentiment
was that the poor were the more likely threat.46
In sum, the events of the early to mid-1780s played a
crucial role in the constitutional framing. Political leaders,
including future delegates to the Constitutional Convention, were
disabused of their idealism. The people were not so uniformly
virtuous that they would not seek to use government for their
own advantages. At the Convention, Hamilton emphasized that
utopian conceptions of human nature that depicted people as
pristinely virtuous were dangerous. “We must take man as we
find him,” Hamilton said.47 “A reliance on pure patriotism had
been the source of many of our errors.”48 Hamilton, Madison, and
the other Framers had become hardheaded realists, pragmatic
about politics.49
Because of their experience with state governments, the
Framers realized the constitutional system needed to protect

41 1 FARRAND, supra note 18, at 27 (May 29, 1787); see BEEMAN, supra note

18, at 86-90. Gouverneur Morris stated: “Every man of observation had seen in the
democratic branches of the State Legislatures, precipitation,” or in other words, rash or
impetuous action. 1 FARRAND, supra note 18, at 512 (July 2, 1787).
42 2 FARRAND, supra note 18, at 278 (Aug. 13, 1787).
43 1 id. at 48 (May 31, 1787); see also id. at 101 (June 4, 1787) (statement of

George Mason).
44 2 id. at 202 (Aug. 7, 1787); see also id. at 248 (Aug. 10, 1787) (statement of

Charles Pinckney); BEEMAN, supra note 18, at 281 (explaining the Framers’ fear).
45 2 FARRAND, supra note 18, at 249 (Aug. 10, 1787); 1 id. at 512 (July 2,

1787) (Morris).
46 E.g., 1 id. at 153-55 (June 7, 1787) (discussing protection of property in relation

to the election of legislators); see BEEMAN, supra note 18, at 281.

47 1 FARRAND, supra note 18, at 376 (June 22, 1787) (Hamilton).
48 Id.
49 PETER GAY, THE ENLIGHTENMENT: AN INTERPRETATION 170, 566 (1969).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 9

against efforts to use the government for corrupt purposes.50

But while the Framers were no longer utopian idealists, they
had not become cynics. They did not repudiate the goal of
republican government. Madison explained that if the goal of
principled government for the common good was jettisoned, if the
people and their elected officials could not act virtuously, then
“nothing less than the chains of despotism” would be possible.51
Consequently, the Framers began with a more realistic depiction
of human nature—of the citizen-self—and then attempted to
build a government based on that foundation. The next Part
explores the fruits of their efforts, particularly with regard to
republican government and the public sphere.

II. REPUBLICAN-DEMOCRATIC GOVERNMENT AND THE

PUBLIC SPHERE

A. The Common Good and the Problem of Factions

Despite their experience with the states, the Framers

unequivocally conceived of American government as republican-
democratic.52 Citizens and elected officials were supposed to be
virtuous. In the political realm, they were to pursue the common
good or public welfare rather than their own “private and partial
interests.”53 The Preamble to the Constitution memorialized the
government goal of the common good: “We the People” were to
“promote the general Welfare.”54 When citizens or officials used
government institutions to pursue their own interests, then the
government was corrupt. Groups of like-minded citizens who
corrupted the government were deemed factions, whether
constituted by a majority or a minority of citizens. In the

50 See G. Edward White, The Political Economy of the Original Constitution,

35 HARV. J.L. & PUB. POL’Y 61, 69-71, 82 (2012) (emphasizing the numerous
constitutional provisions intended to protect private rights).
51 THE FEDERALIST No. 55 (James Madison) (Project Gutenberg ed., 2004); see

MCDONALD, supra note 18, at 70-77 (arguing that Southerners and New Englanders
conceptualized virtue with different emphases). Madison viewed the state-level
experiments in republicanism in the 1780s to be partial successes. Those successes
could be attributed only to “the virtue and intelligence of the people of America.” THE
FEDERALIST No. 49 (James Madison) (Project Gutenberg ed., 2004).
52 The Founders themselves did not agree on a precise definition of

republican government. STOURZH, supra note 33, at 44-45. My definition of republican

democracy overlaps but is not identical to some technical definitions of civic
republicanism. See RICHARD C. SINOPOLI, THE FOUNDATIONS OF AMERICAN CITIZENSHIP
9-12 (1992) (discussing definitional problems related to civic republicanism).
53 CREATION, supra note 18, at 59; e.g., VIRGINIA BILL OF RIGHTS (1776),

reprinted in 2 POORE, supra note 18, at 1908 (emphasizing government for “the
common benefit”). For a detailed discussion of the Constitutional Convention, see
BEEMAN, supra note 18.
54 U.S. CONST. pmbl.
10 BROOKLYN LAW REVIEW [Vol. 81:1

Federalist Number 10, James Madison described a faction as “a

number of citizens, whether amounting to a majority or a
minority of the whole, who are united and actuated by some
common impulse of passion, or of interest, adverse to the rights
of other citizens, or to the permanent and aggregate interests of
the community.”55 But how could a democratic majority
constitute a faction? It was possible only because the Framers
understood the common good to be objective or, in other words,
“out there.”56 From the Framers’ standpoint, the people’s “true
interest[s]” determined the common good, whether or not the
people recognized those interests.57 Thus, one could not merely
add together the private interests of the majority of citizens to
calculate the common good. In a letter to James Monroe,
Madison explained that when a government establishes “the
interest of the majority [as] the political standard of right and
wrong . . . it is only re-establishing, under another name and a
more specious form, force as the measure of right.”58 By
definition, then, a government pursuing “partial interests”59 or
“private passions”60 rather than the common good was corrupt.

B. Selecting Leaders from the Virtuous Elite

The crucial question for the Framers was how to

structure the Constitution and government institutions to
engender government for the common good. To a great degree, the
Framers found the answer in their conception of the citizen-self.
As Alexander Hamilton explained at the Constitutional
Convention: “The science of policy is the knowledge of human
nature.”61 The individual citizen-self—the Framers’ self, so to
speak—could reason and act virtuously. Virtue was not inherited
through bloodlines; there would be no hereditary aristocracy in
America.62 Instead, virtue could be cultivated and learned.63 Yet

55 THE FEDERALIST No. 10 (James Madison) (Project Gutenberg ed., 2004); see

JAMES MADISON, IN VIRGINIA CONVENTION (June 5, 1788), reprinted in THE COMPLETE

MADISON: HIS BASIC WRITINGS 46-47 (Saul K. Padover ed., 1953) [hereinafter
COMPLETE MADISON] (arguing that majority factions have produced unjust laws).
56 MORTON WHITE, PHILOSOPHY, THE FEDERALIST, AND THE CONSTITUTION

120 (1987).
57 1 FARRAND, supra note 18, at 422 (June 26, 1787) (James Madison); THE

FEDERALIST No. 1 (Alexander Hamilton); THE FEDERALIST No. 2 (John Jay); THE
FEDERALIST No. 6 (Alexander Hamilton); THE FEDERALIST No. 10 (James Madison).
58 Letter from James Madison, to James Monroe (Oct. 5, 1786), reprinted in

COMPLETE MADISON, supra note 55, at 45.

59 THE FEDERALIST No. 37 (James Madison) (Project Gutenberg ed., 2004).
60 THE FEDERALIST No. 6 (Alexander Hamilton) (Project Gutenberg ed., 2004).
61 1 FARRAND, supra note 18, at 378 (June 22, 1787).
62 U.S. CONST., art. I, § 9, cl. 8 (“No Title of Nobility shall be granted . . . .”);

THE FEDERALIST No. 39 (James Madison).

2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 11

the Framers had concluded from experience that in many, if

not most, circumstances, the average person acts in accordance
with passion and interest. The Framers, however, were not
only pragmatic realists in their view of human nature—they
were also unapologetic elitists. Specifically, the Framers
believed in the existence of a virtuous elite—which included the
Framers themselves—who would pursue the common good in
the public sphere even while pursuing their own interests in
the private sphere.64
So from what portion of society would the virtuous elite
come? Unsurprisingly, given that most of them were “men of
considerable wealth,” many Framers believed that the virtuous
elite would arise mostly from among the wealthiest men.65
Alexander Hamilton perceived that many people were
disinclined to become involved in public affairs in the first
place.66 Indeed, the Framers had good reason to be skeptical of
the average American’s knowledge and education regarding
national political affairs. The typical American newspaper in
1787 was only four pages long, with more than half of that
devoted to classified advertising. Because of the limited
communication and transportation technologies, the papers
printed little national news, and what national news the papers
contained was necessarily dated. Thus, the average American
largely lacked access to extensive information about national
politics and issues.67
Regardless, the Framers insisted that virtue and reason
should and could overcome passion and interest in public affairs.
Government should and could be conducted in accord with civic
republican principles.68 Given their elitist attitudes, the Framers
hoped that voters would elect “speculative men”69 to be the
“guardians”70 of “the mass of the citizens.”71 But the Framers did

63 See, e.g., THE FEDERALIST No. 36 (Alexander Hamilton) (emphasizing that

“strong minds” could come from “every walk of life”).

64 1 FARRAND, supra note 18, at 154 (June 7, 1787) (Gerry), 422 (June 26,

1787) (Madison); see NEDELSKY, supra note 18, at 158 (explaining that even the
virtuous elite could not be expected to rise constantly “above self-interest”).
65 BEEMAN, supra note 18, at 67; see also id. at 114, 280-81 (discussing wealth and

virtue); NEDELSKY, supra note 18, at 142-44 (discussing Madison’s views about the wealthy).
66 STOURZH, supra note 33, at 82-83.
67 BEEMAN, supra note 18, at 130-31.
68 MCDONALD, supra note 18, at 189-209; NEDELSKY, supra note 18, at 37;

POCOCK, supra note 18, at 513-26; CREATION, supra note 18, at 391-468; POCOCK,
supra note 18, at 466 (“In the civic humanist ethos, then, the individual knew himself
to be rational and virtuous.”).
69 THE FEDERALIST No. 17 (Alexander Hamilton) (Project Gutenberg ed., 2004).
70 THE FEDERALIST No. 71 (Alexander Hamilton) (Project Gutenberg ed., 2004).
71 THE FEDERALIST No. 17 (Alexander Hamilton); see WHITE, supra note 56,

at 125-27 (discussing the elitism of the Framers).

12 BROOKLYN LAW REVIEW [Vol. 81:1

not leave the functioning of the government to mere hope. Rather,

they attempted to structure the constitutional system to produce
a government most likely to pursue the common good. “The aim of
every political constitution is, or ought to be,” Madison declared,
“first to obtain for rulers men who possess most wisdom to
discern, and most virtue to pursue, the common good of the
society; and in the next place, to take the most effectual
precautions for keeping them virtuous whilst they continue to
hold their public trust.”72

C. Structuring the Constitution to Overcome Factions and

Pursue the Common Good

But how could the Framers ensure pursuit of the common

good when they refused to limit the primary cause of factionalism,
the liberty to pursue one’s own passions and interests? The
answer, they believed, was to structure government institutions
to control the “effects” of factionalism.73 The constitutional
controls over factionalism would operate at three levels. At the
first level, the Framers designed the Constitution to promote the
election to government positions of a virtuous elite, who would
then voluntarily pursue the common good. Consequently,
Madison championed a large over a small republic—the nation
over the state. In a large republic (the nation), the electorate
supposedly would be difficult to fool or trick into electing a self-
interested demagogue. As Madison explained, “it will be more
difficult for unworthy candidates to practice with success the
vicious arts by which elections are too often carried.”74 From this
perspective, representative government was better than direct
democracy because “the public voice, pronounced by the
representatives of the people, will be more consonant to the public
good than if pronounced by the people themselves.”75
Yet the Framers knew that even in a large republic,
sometimes the people would mistakenly elect an official lacking
virtue. Moreover, passion or interest would occasionally tempt
even the virtuous to ignore the common good. Thus, at the
second level, the Framers structured the system to induce

72 THE FEDERALIST No. 57 (James Madison) (Project Gutenberg ed., 2004).

73 THE FEDERALIST No. 10 (James Madison) (Project Gutenberg ed., 2004).
74 Id.; see also THE FEDERALIST No. 3 (John Jay) (Project Gutenberg ed.,

2004) (emphasizing that the “best men” would be elected to national offices because the
people would have “the widest field for choice”). Here, Publius was influenced by Hume,
who argued that factionalism was more likely in smaller republics. See David Hume,
Of Parties in General, in ESSAYS: MORAL, POLITICAL, AND LITERARY 54-56 (Oxford
Univ. Press ed., 1963).
75 THE FEDERALIST No. 10 (James Madison) (Project Gutenberg ed., 2004).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 13

elected officials to pursue the common good despite temptations

and inclinations to act otherwise. Once again, the size of the
republic would help in this regard. With a larger population,
the number of “opposite and rival interests” would multiply and
challenge each other.76 In other words, the Framers designed the
Constitution to take advantage of human nature, particularly
the inclination to pursue passions and interests. At the
national level, Madison explained, “[a]mbition . . . [would] be
made to counteract ambition.”77 Faction would fight faction.
With diverse passions and interests battling against each
other, government officials would realize that, often, they could
act only for the common good—or not act at all.78
Even so, the Framers knew that some officials would
persist in trying to act for partial or private interests. Thus, at the
third level, the Framers designed government institutions to
prevent such officials from successfully using government power
in contravention of the common good. Various structural
mechanisms—including federalism, separation of powers,
bicameralism, and checks and balances—dispersed power among
a multitude of government departments and officials, each of
which would have its own interests.79 “[T]he constant aim is to
divide and arrange the several offices in such a manner as that
each may be a check on the other—that the private interest of
every individual may be a sentinel over the public rights.”80 In
other words, the Constitution dispersed power among so many
institutions, departments, and officials that the self-interested
grasping of one would inevitably be met by the self-interested
grasping of another. The Framers built gridlock and government
paralysis into the system.81
The Framers intended these three levels of structural
constitutional controls on factionalism to both promote the
virtuous pursuit of the common good and protect individual

76 THE FEDERALIST No. 51 (James Madison) (Project Gutenberg ed., 2004).

77 Id.
78 Id. (“In the extended republic of the United States, and among the great variety

of interests, parties, and sects which it embraces, a coalition of a majority of the whole
society could seldom take place on any other principles than those of justice and the general
good . . . .”). Hume similarly argued that passions could counter passions. See ALBERT O.
HIRSCHMAN, THE PASSIONS AND THE INTERESTS: POLITICAL ARGUMENTS FOR CAPITALISM
BEFORE ITS TRIUMPH 26-30 (1977) (discussing Hume’s influence on the Framers).
79 See, e.g., THE FEDERALIST No. 51 (James Madison) (discussing the

advantages of a bicameral legislature and an executive veto on legislative actions).

80 Id.
81 Also, Congress was supposedly limited to exercising its specifically

enumerated powers rather than a general or police power. U.S. CONST. art. I, § 8; see
THE FEDERALIST No. 84 (Alexander Hamilton) (arguing that the scheme of enumerated
powers limited congressional power so that there was no need for a Bill of Rights).
14 BROOKLYN LAW REVIEW [Vol. 81:1

rights and liberties.82 The Framers pragmatically designed the

Constitution to fit their experience-based conception of the
citizen-self, of human nature. Significantly, then, the Framers’
citizen-self was Janus-faced: virtue and reason animating one
face, but passion and interest, especially economic interest,
animating the other. To a great degree, passion and interest
were to have free rein in the private sphere. Yet in the public
sphere, the Founders designed the Constitution to produce
results in accord with virtue and reason as often as possible. The
constitutional design, in other words, would enable the citizen-self
to act virtuously in the public sphere while reveling in passions
and interests in the private sphere. And even when virtue was in
short supply in the public sphere, the Constitution was designed
to channel self-interest toward pursuit of the common good.

III. PROPERTY AND THE PRIVATE SPHERE

A. The Importance of Property and the Fear of Democratic

Excess

If individuals enjoyed liberty and property, according to

the Framers, then they would inevitably pursue their own
passions and interests in the private sphere—with wealth or
property being the most important interest. Indeed, the
Framers recognized that many if not most citizens would be
motivated to pursue their own passions and interests not only
in the commercial or private world but also in the public world.
Factionalism was foreordained, yet the Framers unequivocally
sought to protect liberty and property.83
The Framers manifested their desire to protect property
in particular by repeatedly emphasizing that the Constitution
needed to limit democratic excesses. To be clear, all of the
Framers viewed themselves as supporters of republican
government, but most of them were simultaneously suspicious of
democracy.84 Almost all delegates to the Convention believed
that the people should directly elect “the larger branch” of the

82 THE FEDERALIST No. 10 (James Madison); THE FEDERALIST No. 14 (James

Madison); see also ROGERS M. SMITH, CIVIC IDEALS 470-71 (1997) (“The founders of the
United States did indeed define and construct their new nation in accord with
Enlightenment doctrines of individual liberties and republican self-governance more
than any regime before and most since . . . .”).
83 Joyce Appleby argued that the Constitution weakened the state
governments yet constrained the national government, and in doing so, it enhanced the
private realm’s protection of liberty and property. See Joyce Appleby, The American
Heritage: The Heirs and the Disinherited, 74 J. AM. HIST. 798, 804 (1987).
84 BEEMAN, supra note 18, at 122-23.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 15

national legislature.85 At least one legislative house should arise

directly from the people, the ultimate sovereigns. As Madison put
it, “the popular election of one branch of the national Legislature
[i]s essential to every plan of free Government.”86 Beyond that
point, however, few Framers supported direct democracy. With
the notable exception of James Wilson, who wanted both branches
and a national executive to be directly elected, most delegates
wanted an upper legislative house—as well as an executive—
chosen through some other means (for instance, by electors,
elected by the people for life terms).87 “[T]he general object was to
provide a cure for the evils under which the [United States]
laboured,” explained Randolph.88 “[I]n tracing these evils to their
origin every man had found it in the turbulence and follies of
democracy: that some check therefore was to be sought for this
tendency of our Governments: and that a good Senate seemed
most likely to answer the purpose.”89 Indeed, Madison argued
strenuously that the national government should be able to veto
state laws because he distrusted the democratic excesses—the
unchecked factionalism—of the state legislatures.90
Thus, the Framers wanted to prevent factions—even if
they were democratic majorities—from using the government
to undermine property and other individual rights. To be sure,
property rights were enigmatic in their effects. As experience
had shown, private property was a given in American society.
The ownership or desire to own property could motivate people
to act in positive ways in the private sphere.91 Moreover, for
many, ownership of property or other wealth seemed necessary
for civic virtue. All but one of the state constitutions in effect in
1787 required private ownership of property or similar
economic wealth before an individual could fully participate in
the polity.92 In Maryland, for instance, suffrage was extended
only to those “freemen . . . having a freehold of fifty acres of

85 1 FARRAND, supra note 18, at 48 (May 31, 1787) (Mason).

86 Id. at 49 (May 31, 1787) (Madison).
87 See id. at 52 (May 31, 1787); id. at 68 (June 1, 1787) (statements of

Wilson); see also BEEMAN, supra note 18, at 168-69 (discussing Hamilton’s plan for
choosing an upper house).
88 1 FARRAND, supra note 18, at 51 (May 31, 1787).
89 Id.
90 Id. at 164-65 (June 8, 1787); BEEMAN, supra note 18, at 228.
91 See THE FEDERALIST No. 10 (James Madison) (emphasizing the need to

protect private interests); THE FEDERALIST No. 44 (James Madison) (tying limits on
state government powers to economic concerns).
92 BERNARD CRICK, DEMOCRACY: A VERY SHORT INTRODUCTION 44-45 (2002).

On state constitutions and property or wealth requirements, see WILLI PAUL ADAMS,
THE FIRST AMERICAN CONSTITUTIONS 315-27 (2001); ALEXANDER KEYSSAR, THE RIGHT
TO VOTE 8-24, 340-41 (2000).
16 BROOKLYN LAW REVIEW [Vol. 81:1

land . . . [or] having property in this State above the value of

thirty pounds current money.”93 Private ownership of property
or other wealth supposedly established one’s independence,
necessary for the disinterestedness of civic virtue.94 Moreover,
wealth gave one a sufficient “stake in society,” or concern for
the common good, which justified the power to vote and to hold
office.95 Yet, simultaneously, the Framers realized all too well
that desire or greed for property was often the root source of
factionalism and corruption.96 So property was key—as both a
positive and negative force—but how, precisely, did the
Framers conceive of property?

B. The Framers’ Conception of Property Rights:

Mercantilism or Capitalism?

The concept of property was in flux in the late eighteenth

century. In accord with the common law, states defined property
as it had developed under feudalism and mercantilism.97 In the
1760s, William Blackstone had thus defined property as “that sole
and despotic dominion which one man claims and exercises over
the external things of the world, in total exclusion of the right of
any other individual in the universe.”98 This definition had
developed in an agrarian world not conducive to capitalist
development. In the founding era, America clearly was not feudal,
but it was, at least in part, mercantile.
Mercantilism developed from the sixteenth to the
eighteenth centuries with the rise of nation-states. It entailed
close ties between the state and merchants. In general, a state
would grant a monopoly to a merchant or a company—an early
form of corporation—in order to allow the merchant to develop a
particular market, often in a new or developing colony.99 The
Dutch East India Company, the British East India Company, and

93MD. CONST. of 1776, art. II, reprinted in 1 POORE, supra note 18, at 817, 821.
94White, supra note 50, at 83.
95 KEYSSAR, supra note 92, at 5, 9.
96 Several years after the framing, James Sullivan perfectly captured the

dual nature—the costs and benefits—of property:

This propensity [to acquire wealth], has a manifest tendency to the advancement
of the public interest; and will produce the prosperity of the community, where it
is exerted; unless the publick mind is so corrupted, as to embrace wealth, in
preference to virtue, by making property a qualification to the publick confidence,
superior to those of integrity, industry, learning, and ability.
JAMES SULLIVAN, THE PATH TO RICHES 3 (1809).
97 HORWITZ, supra note 19, at 32.
98 WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAWS OF ENGLAND 2

(1st ed. 1766).

99 GALBRAITH, supra note 19, at 39-42.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 17

the Hudson Bay Company are renowned examples of mercantilist

enterprises.100 Mercantilist endeavors primarily sought to
enhance the mother country’s treasure (gold and silver) and
military power.101 Thus, while mercantilism relied on an economic
market, it was not based on a competitive free market. Rather, in
a mercantilist system, the state and economy were closely
intertwined, working together for common purposes through the
creation of monopolies and the implementation of protectionist
policies. In such a system, property rights were inherently
limited. The North American colonies were, for the most part,
founded as mercantilist outposts for the benefit of the mother
country. They were expected to export only those resources and
products not produced in England and to serve as an import
market for English-produced goods. In the decades before
American independence, England was to a great degree still
treating the colonies as parts of its mercantilist empire.102
For years, though, Americans had been chafing against
and resisting their subservient position in the English
mercantilist system. And while, from an economic standpoint,
the Americans were not in fact faring badly under the system,
the American Revolution arose in part from a desire to escape
the strictures of English control.103 Moreover, the Americans
were not alone in protesting English mercantilism in 1776. In
that same year, Adam Smith published The Wealth of Nations,
which advocated for a competitive free-market economy that
would benefit society more than the mercantilist system.104
Smith’s writings influenced numerous Framers, especially
Alexander Hamilton, but it is important not to overstate
Smith’s sway.105 For instance, Publius did not cite Smith even
once in the Federalist. Smith wrote in part because of his
observations of the developing Industrial Revolution in
England, but the Industrial Revolution would not fully sweep
into the United States for nearly another century.106 Smith’s
concept of a competitive free-market system driven by a desire

100 Id. at 42; HEILBRONER & SINGER, supra note 19, at 22-27. The full name of

the Hudson Bay Company was “Gentlemen Adventurers, Trading into Hudson’s Bay.”
GALBRAITH, supra note 19, at 39-42.
101 GALBRAITH, supra note 19, at 39-40; HEILBRONER & SINGER, supra note

19, at 26-27.
102 HEILBRONER & SINGER, supra note 19, at 26-27, 48-49.
103 GALBRAITH, supra note 19, at 31; HEILBRONER & SINGER, supra note 19, at 71.
104 See generally ADAM SMITH, THE WEALTH OF NATIONS (1776). See also

GALBRAITH, supra note 19, at 31; HEILBRONER & SINGER, supra note 19, at 21;
MCDONALD, supra note 18, at 125.
105 MCDONALD, supra note 18, at 97-98, 108-42.
106 See HEILBRONER & MILBERG, supra note 19, at 60-69 (discussing England’s

Industrial Revolution).
18 BROOKLYN LAW REVIEW [Vol. 81:1

for profit would eventually be known as capitalism, yet he used

neither this term nor the term “laissez-faire.”107 In fact, neither
term would enter the English lexicon until the early decades of
the nineteenth century.108 Smith, it should be reiterated, was
not describing an already completed transition in England from
mercantilism to capitalism; rather, he was advocating in favor of
this change. Thus, during the founding era, the mercantilist
concept of property still controlled: “[O]wnership did not include
the absolute right to buy or sell one’s property in a free market;
that was not a part of the scheme of things in eighteenth-century
England and America.”109
Most important, then, when placed in the proper context
of the late eighteenth century, the Framers and other
contemporary Americans could not have understood the economy
as laissez-faire or even as a true capitalist system. Capitalism had
not yet fully emerged in England, much less in the United
States.110 After the Revolution, numerous state governments
purposefully created quasi-mercantilist systems that lasted into
the early nineteenth century.111 Even so, the Framers, or at least
some of the Framers, had a partial vision of a competitive free-
market economy.112 Indeed, perhaps the Framers’ most
remarkable feat was their pragmatic (Machiavellian) synthesis of
civic republican thought, Lockean philosophy, and Smith’s
incipient capitalism into a coherent political-economic system.
They understood, for instance, that a type of private-sphere of
social virtue was emerging in the 1780s. This nascent notion of
virtue, distinct from the civic virtue associated with civic
republican government yet consistent with Smith’s writings,
suggested that the individual pursuit of self-interest in the
private sphere could itself further the common good, though at

107 SMITH, supra note 104.

108 See Laissez-Faire Definition and Capitalism Definition, ONLINE OXFORD
ENGLISH DICTIONARY, http://www.oed.com/view/Entry/105152 [http://perma.cc/RR82-M9Z3]
(last visited Dec. 16, 2015) and http://www.oed.com/view/Entry/27454 [http://perma.cc/8ZT8-
AT9R] (last visited Dec. 16, 2015), respectively (showing English use of “laissez-faire” in
1825 and “capitalism” in 1833); KARL POLANYI, THE GREAT TRANSFORMATION: THE
POLITICAL AND ECONOMIC ORIGINS OF OUR TIME 143 (2001 ed.) (arguing that laissez-faire
ideology emerged in the 1830s).
109 MCDONALD, supra note 18, at 14.
110 HEILBRONER & MILBERG, supra note 19, at 55; see HORWITZ, supra note 19,

at xiii-xiv (agreeing that the late eighteenth and early nineteenth centuries were not
laissez-faire).
111 HORWITZ, supra note 19, at 33; MCDONALD, supra note 18, at 18, 101-06.
112 Hamilton, Wilson, and Gouverneur Morris hoped the American economy would

develop similarly to that of England, though in 1787, “the concept of an ‘economy’ as an

entity having a life of its own was just emerging.” MCDONALD, supra note 18, at 4.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 19

that time, a benevolent and decent Protestant civility still had to

temper that self-interest.113
In other words, the experiences of the 1780s had a flip
side. The decade revealed that many Americans, enjoying
unprecedented liberty, would pursue their own passions and
interests with determined vigor. On the one side, as the
Philadelphia delegates emphasized, this self-interest threatened
republican government. But on the other side, this same self-
interest could generate great personal and social benefits when
brought to bear in commercial endeavors. By 1800, a Columbia
professor complained, “From one end of the continent to the other,
the universal roar is Commerce! Commerce! at all events,
Commerce!”114 But other Americans were celebrating rather than
complaining.115 Thus, despite the persistence of mercantilism,
with its close linkage between the state and the economy, the
Framers had glimpsed the benefits of conceptually separating a
private sphere from a public sphere. The public sphere would still
be governed by republican-democratic principles, while the
private sphere would be constituted in part by a still-evolving
economic marketplace.

C. Slavery as a Refutation of a Laissez-Faire Constitution?

The Framers’ incomplete adoption of capitalism is

nowhere clearer than in their discussions and acceptance of
slavery as a legal institution.116 In 1787, slaves constituted
approximately 20% of the American population, though the
percentage was much higher in the southern states.117 In fact,
90% of the nation’s slaves lived in the five states below the
Mason-Dixon line.118 At that time, South Carolina and Georgia
were most dependent on slave labor because their economies

113 JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN

VISION OF THE 1790s, at 14-15 (1984); RADICALISM, supra note 18, at 215-19, 230; see also
SEAN WILENTZ, CHANTS DEMOCRATIC: NEW YORK CITY AND THE RISE OF THE AMERICAN
WORKING CLASS, 1788-1850, at 14-15 (2004) (discussing struggles over the meaning of
virtue and the common good); Isaac Kramnick, Republican Revisionism Revisited, 87 AM.
HIST. REV. 629, 662 (1982) (emphasizing the changing notions of virtue).
114 RADICALISM, supra note 18, at 326 (quoting Samuel Mitchill).
115 E.g., SAMUEL BLODGET, ECONOMICA 12 (1806) (emphasizing social cohesion

engendered by commerce); see RADICALISM, supra note 18, at 325-47 (describing

emerging celebration of commerce).
116 Helpful sources focusing on slavery include the following: DERRICK A.

BELL, JR., RACE, RACISM, AND AMERICAN LAW (2d ed. 1980); PAUL FINKELMAN, SLAVERY
AND THE FOUNDERS (3d ed. 2014); Staughton Lynd, Slavery and the Founding Fathers,
in BLACK HISTORY: A REAPPRAISAL 115-31 (Melvin Drimmer ed., 1968).
117 BEEMAN, supra note 18, at 310-11.
118 GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC,

1789-1815, at 164-65 (2009) [hereinafter EMPIRE].

20 BROOKLYN LAW REVIEW [Vol. 81:1

were based on the labor-intensive crops of rice and indigo, but

even Virginia had one-third of its wealth tied up in slavery.119
Yet the Framers did not anticipate how important slavery
would soon become. In 1793, Eli Whitney invented the cotton
gin and transformed the cotton industry.120 In short order,
cotton became an incredibly profitable crop that was highly
reliant on slave labor.121 Slave-supported cotton production
would dominate the southern economy, though it also bolstered
the northern textile industry. But when the Framers met in
Philadelphia, no one knew about the future and King Cotton.
Several northern states had already begun moving toward
emancipation, and many Americans thought states in the
upper South would soon follow in that direction.122
Even so, of the 55 delegates who participated in at least
part of the Convention, 25 owned slaves.123 The first explicit
mention of slavery at the Convention arose in the context of
legislative representation, particularly in the lower house of
Congress. The Virginia Plan ambivalently proposed that “the
rights of suffrage in the National Legislature ought to be
proportioned to the Quotas of contribution, or to the number of
free inhabitants, as the one or the other rule may seem best in
different cases.”124 The delegates turned to this proposal on May
30, 1787, and it immediately proved controversial. Rufus King of
Massachusetts pointed out that calculating “quotas of contribution”
would be problematic because the quotas would “be continually
varying.”125 To be sure, “quotas of contribution” was an ambiguous
concept, but most delegates understood that it suggested state
representation would be apportioned in accord with a state’s
wealth.126 Yet the method for determining wealth remained
unclear. In particular, would slaves be counted as relevant
property for ascertaining quotas of contribution? Given the
difficulties surrounding the issue of legislative representation, the
delegates postponed discussion for another day.
The Convention returned to the problem on June 11. John
Rutledge of South Carolina moved that state representation—
that is, “the proportion of [state] suffrage in the 1st branch”—

119 BEEMAN, supra note 18, at 315; EMPIRE, supra note 118, at 165.
120 HALL, supra note 19, at 130; SEAVOY, supra note 19, at 111.
121 HALL, supra note 19, at 130; SEAVOY, supra note 19, at 111.
122 EMPIRE, supra note 118, at 519-24; see BELL, supra note 112, at 8 (listing

the years in which northern states abolished slavery); FINKELMAN, supra note 116, at
ix (detailing when states eliminated slavery).
123 BEEMAN, supra note 18, at 309-11.
124 1 FARRAND, supra note 18, at 20 (May 29, 1787) (footnote omitted).
125 Id. at 199 (June 11, 1787).
126 BEEMAN, supra note 18, at 106-07.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 21

should be based on “the quotas of contribution.”127 Pierce Butler of

South Carolina seconded the motion and “add[ed] that money was
power.”128 He explained, “States ought to have weight in the
Gov[ernment]—in proportion to their wealth.”129 Rutledge and
Butler unquestionably wanted to protect the interests of southern
slaveholding states.130 King again objected that the determination
of state wealth would be problematic.131 Wilson then moved to
delete the reference to quotas of contribution but offered an
alternative, which he hoped the southerners would accept as a
compromise. Indeed, the South Carolinian Pinckney seconded
Wilson’s motion.132 Wilson proposed that representation be
in proportion to the whole number of white & other free Citizens &
inhabitants of every age[,] sex & condition including those bound to
servitude for a term of years and three fifths of all other persons not
comprehended in the foregoing description, except Indians not
paying taxes, in each State.133

Gerry, from Massachusetts, immediately protested that, if

“property [were] not the rule of representation[, w]hy then
should the blacks, who were property in the South, be in the rule
of representation more than the cattle & horses of the North.”134
No one responded to Gerry. Instead, they voted to approve
Wilson’s motion.
This exchange concerning legislative representation was
crucial in multiple ways. The delegates had begun by considering
two opposed methods of proportional representation: one based on
wealth (quotas of contribution) and one based on population
(number of free inhabitants). Significantly, the delegates chose to
repudiate representation—and hence, government power—based
explicitly on wealth. This decision, in and of itself, suggested the
importance of separating the public (government) sphere from the
private (economic) sphere. The delegates opted instead to base
representation on population, but rather than equating
population solely with the number of free inhabitants, they chose
to count each slave as three-fifths of a person. This approach
would significantly increase southern representation and
legislative power. Moreover, this decision emblematized the
delegates’ attitudes towards slavery. After Gerry protested the

127 1 FARRAND, supra note 18, at 196 (June 11, 1787).

128 Id.
129 Id.
130 BEEMAN, supra note 18, at 152-53.
131 1 FARRAND, supra note 18, at 197 (June 11, 1787).
132 Id. at 201 (June 11, 1787); BEEMAN, supra note 18, at 153.
133 1 FARRAND, supra note 18, at 201 (June 11, 1787).
134 Id.
22 BROOKLYN LAW REVIEW [Vol. 81:1

three-fifths clause, no one declared that slavery was immoral—at

least at that point. No one declared that slavery should be
abolished. Rather, the delegates treated slavery as a political and
economic issue in which, for the most part, southerners and
northerners had differing interests.135
The Three-Fifths Clause still left an ambiguity.136 Were
slaves counted because they were part of the population—even if
not free—or were they counted as property, thus reintroducing an
implicit element of wealth into the calculation of proportional
representation? The delegates never completely clarified this
murkiness.137 The three-fifths formula had originated in a failed
1783 Continental Congress proposal for calculating the wealth of
particular states.138 Moreover, the delegates’ subsequent
statements and actions regarding slavery underscored their
commitment to protecting property. When, approximately one
month later, the delegates revisited the issue of whether slaves
should be counted as three-fifths of a person for purposes of
proportional representation, Butler argued that three-fifths was
not enough. He explained that “equal representation ought to be
allowed for [slaves] in a Government which was instituted
principally for the protection of property, and was itself to be
supported by property.”139 Wilson objected: “[H]e could not agree
that property was the sole or the primary object of Government &
Society. The cultivation & improvement of the human mind was
the most noble object.”140 Wilson was an outlier in viewing
cultivation of the human mind as the Constitution’s primary goal,
though not all delegates agreed with Butler that property was the
primary object.141 When it came to slavery, however, the
overwhelming sentiment was that slaves were property. In the
words of Charles Cotesworth Pinckney, “Property in slaves should
not be exposed to danger.”142
While many delegates worried about protecting the
property interests of slave owners, none of the delegates
protested that slavery would contravene the most fundamental
principles of a capitalist economy. Capitalism is based on the
drive for profit in a competitive free market.143 Slavery is the

135 BELL, supra note 116, at 22; FINKELMAN, supra note 116, at 34.
136 BEEMAN, supra note 18, at 153-55.
137 Madison subsequently acknowledged this ambiguity. THE FEDERALIST No.

54 (James Madison).
138 1 FARRAND, supra note 18, at 580-81 (July 11, 1787).
139 Id.
140 Id.
141 MCDONALD, supra note 18, at 3-4, 268.
142 1 FARRAND, supra note 18, at 594 (July 12, 1787).
143 HEILBRONER & SINGER, supra note 19, at 9-12.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 23

antithesis of a free market; it is coerced labor.144 George Mason

of Virginia came closest to acknowledging a tension between
slavery and a free market when he stated, “Slavery discourages
arts & manufactures. The poor despise labor when performed
by slaves.”145 After Mason’s observation, though, no one
elaborated on or pursued his concern.
Although slavery would contravene a modern competitive
free market revolving around contractual agreements, slavery
appeared consistent with a premodern economy. At the time of
the American founding, England was developing a theory of
contract based on marketplace values, but no American state
would adopt this innovation until the early nineteenth century—
well after the ratification of the Constitution.146 In late
eighteenth-century America, notions of fairness and equity
limited the assignment and enforceability of contracts.147 Contract
law, in fact, emerged as a separate common law realm in the
United States only after the turn of the nineteenth century.148
Under the American common law of the late eighteenth and early
nineteenth centuries, duties of care arose because of established
status relationships.149 The common law, for example, attached a
specific duty of care to many occupations.150 Innkeepers owed a
particular duty of care to protect lodgers, while ferrymen owed a
duty of safe transportation to travelers.151 In civil liability (tort)
cases—structured around common law writs or forms of action,
such as trespass or trespass on the case—judges (or juries) would
be unlikely to conclude that a defendant was negligent but might
find that the defendant neglected to fulfill a duty in accord with
his distinct status.152 For example, in the 1786 case of Purviance v.
Angus, involving the liability of a ship’s captain for damaged
goods, the court explained the captain’s duties: “Reasonable care,
attention, prudence, and fidelity, are expected from the master of
a ship, and if any misfortune or mischief ensues from the want of
them, either in himself or his mariners, he is responsible in a civil
action.”153 Slave and master constituted a status relationship
within this premodern worldview.154

144 Id. at 132.

145 2 FARRAND, supra note 18, at 370 (Aug. 22, 1787).
146 HORWITZ, supra note 19, at 180-81; MCDONALD, supra note 18, at 113-14.
147 MCDONALD, supra note 18, at 113.
148 HALL, supra note 19, at 119-23.
149 ALAN CALNAN, A REVISIONIST HISTORY OF TORT LAW 279 (2005).
150 Id. at 235.
151 Id.
152 G. Edward White, The Intellectual Origins of Torts in America, 86 YALE

L.J. 671, 685 (1977).

153 Purviance v. Angus, 1 Dall. 180, 185 (Pa. Ct. Err. & App. 1786).
154 FRIEDMAN, supra note 19, at 225-26; HALL, supra note 19, at 131.
24 BROOKLYN LAW REVIEW [Vol. 81:1

A scarce few delegates condemned slavery as immoral.

When discussing whether Congress should have the power to
regulate or prohibit the slave trade, Roger Sherman of
Connecticut denounced the slave trade as “iniquitous.”155 Luther
Martin of Maryland stated that the slave trade “was inconsistent
with the principles of the revolution and dishonorable to the
American character.”156 Gouverneur Morris uttered perhaps the
strongest condemnation of slavery. On August 8, 1787, he
declared: “It was a nefarious institution—It was the curse of
heaven on the States where it prevailed . . . . [If the northern
states accepted it, they would] sacrifice of every principle of right,
of every impulse of humanity.”157 Morris moved to count only
“free” inhabitants, not slaves, in determining representation.158
Jonathan Dayton of New Jersey seconded the motion.159 Sherman,
who had just denounced the iniquity of slavery, explained that he
“did not regard the admission of the Negroes into the ratio of
representation, as liable to such insuperable objections.”160
Pinkney thought “the fisheries & the Western frontier as more
burdensome to the U.S. than the slaves.”161 The state delegations
then defeated Morris’s motion by a near-unanimous vote, with
only one exception.162
Almost two weeks later, Mason offered the most
surprising moral denunciation of slavery, given that he owned
300 slaves.163 He managed, though, to weave his moral judgment
together with pragmatism and racism. “[The existence of
slavery] prevent[s] the immigration of Whites, who really enrich
and strengthen a country. They produce the most pernicious
effect on manners. Every master of slaves is born a petty tyrant.
They bring the judgment of heaven on a country.”164 Such
condemnatory statements demonstrate that at least some of the
Framers understood the immoral ramifications of their ultimate
acceptance of slavery. Yet one cannot help but be struck by the
usual reactions to these moral denunciations—silence, or at
most, quick dismissal. These statements never provoked any
extended debate on the morality of slavery. Rutledge spoke for
many delegates when he declared, “Religion & humanity had

155 2 FARRAND, supra note 18, at 220 (Aug. 8, 1787).

156 Id. at 364 (Aug. 21, 1787).
157 Id. at 221-22 (Aug. 8, 1787).
158 Id.
159 Id. at 223 (Aug. 8, 1787).
160 Id.
161 Id.
162 Only New Jersey voted in favor of the motion. Id.
163 BEEMAN, supra note 18, at 321-23.
164 2 FARRAND, supra note 18, at 370 (Aug. 22, 1787).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 25

nothing to do with this question—Interest alone is the governing

principle with Nations.”165
Whereas the Framers’ pragmatism served them well in
many ways, it led them to acquiesce far too readily to slavery.166
Wilson, for instance, puzzled over slavery as a logical
conundrum. “Are they admitted as Citizens? Then why are they
not admitted on an equality with White Citizens? Are they
admitted as property? [T]hen why is not other property admitted
into the computation?”167 Yet Wilson immediately bypassed this
logical problem for practical purposes. “These were difficulties
however which . . . [Wilson] thought must be overruled by the
necessity of compromise.”168 Unquestionably, one reason for such
pragmatic acquiescence to slavery was unabashed racism.169
Even Gouverneur Morris, who strongly condemned slavery as
immoral, objected “against admitting the blacks into the
census . . . [for purposes of proportional representation, because]
the people of . . . [Pennsylvania] would revolt at the idea of being
put on a footing with slaves. They would reject any plan that
was to have such an effect.”170 Wilson agreed that “the tendency
of the blending of the blacks with the whites . . . [would] give
disgust to the people of [Pennsylvania].”171 Neither Morris nor
Wilson criticized this racist attitude. In fact, during this era,
racism was so thick that even free blacks were saddled with
legal and social disabilities.172
Meanwhile, the delegates from South Carolina, North
Carolina, and Georgia all threatened to abandon the proposed
constitution if it did not protect slavery.173 The northern
delegates’ desire for a union of all 13 states, combined with
widespread racism, left little doubt about the likely result: the
northern delegates would readily accept constitutional
protections for slavery.
In the end, the Constitution, as ratified, included
numerous provisions that either explicitly or implicitly protected
slavery; indeed, the northern delegates agreed to several such

165 Id. at 364.

166 Lynd, supra note 116, at 131.
167 1 FARRAND, supra note 18, at 587 (July 11, 1787); see also BELL, supra note

116, at 11 (explaining “analytical contortions” common within the law of slavery).

168 1 FARRAND, supra note 18, at 587 (July 11, 1787).
169 Lynd, supra note 116, at 129.
170 1 FARRAND, supra note 18, at 583 (July 11, 1787).
171 Id. at 587.
172 BELL, supra note 116, at 9-10.
173 E.g., 2 FARRAND, supra note 18, at 364 (Aug. 21, 1787) (Charles Pinckney

stated, “South Carolina can never receive the plan if it prohibits the slave trade.”);
BEEMAN, supra note 18, at 323-24.
26 BROOKLYN LAW REVIEW [Vol. 81:1

provisions without securing any southern concessions.174 One

clause, for instance, apportioned congressional representation and
direct taxes by counting slaves as three-fifths of a person.175
Another clause prohibited Congress from banning the slave trade
before the year 1808.176 The Fugitive Slave Clause mandated that
an escaped slave did not become free upon entering a free state; to
the contrary, the escaped slave was to be “delivered up on Claim”
of the slave owner.177 Although historians have subsequently
disagreed about the extent of the protection afforded to slavery,
the southern delegates to the Constitutional Convention were
satisfied. Charles Cotesworth Pinckney reported back to the South
Carolina legislature: “In short, considering all circumstances, we
have made the best terms for the security of this species of property
it was in our power to make. We would have made better if we
could; but on the whole, I do not think them bad.”178
In the end, while the Constitution’s codification of the
institution of slavery underscores the Framers’ concern with
property rights, it also demonstrates that the delegates in
Philadelphia were not unabashed free-market capitalists. The
numerous steps taken to protect the South’s peculiar institution
undermined the development of a free market for labor, a
fundamental prerequisite of a laissez-faire economic system.
Thus, the constitutional protection of slavery as a legal institution
highlights that, at the end of the eighteenth century, capitalism
was still not a fully developed concept in the American ethos.

IV. BALANCING THE PUBLIC AND PRIVATE

A. The Dichotomous Citizen-Self

The Framers, as a whole, were strongly concerned with

the protection of property rights, including property interests
in slaves. But most Framers did not view the protection of
property as the be-all and end-all of the Constitution. Instead,

174 BEEMAN, supra note 18, at 332-33; FINKELMAN, supra note 116, at 34-35. Even

the provisions explicitly protecting slavery did not use the words “slave” or “slavery.”
BEEMAN, supra note 18, at 335-36; FINKELMAN, supra note 116, at 6.
175 U.S. CONST. art. I, § 2, cl. 3.
176 Id. art. I, § 9, cl. 1.
177 Id. art. IV, § 2, cl. 3. For more complete lists of the constitutional

provisions, see BELL, supra note 116, at 22; FINKELMAN, supra note 116, at 6-9.
178 FINKELMAN, supra note 116, at 103 (quoting Pinckney), at 9-10 (describing

southern attitudes toward protection of slavery). During the ratification debates in the
northern states, the proposed constitutional protections of slavery generated
contentious debate. See FINKELMAN, supra note 116, at 35-36; MAIER, supra note 18, at
175-76, 351-52 (giving examples). For a discussion of the historiography of slavery, see
generally PETER J. PARISH, SLAVERY: HISTORY AND HISTORIANS (1989).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 27

for most Framers, both the public and private spheres were
important, and as such, they sought to achieve a balance
between the two.179 In the Federalist Number 10, Madison
wrote: “To secure the public good and private rights against the
danger of such a faction, and at the same time to preserve the
spirit and the form of popular government, is then the great
object to which our inquiries are directed.”180 A constitutional
system that unduly favored either the public or the private
could not long survive. If the private interests and passions of
the people were ignored, the government system would be
divorced from reality and would inevitably collapse. Yet a
government that merely catered to the private passions and
interests of the people could not truly be called a republic and
would soon spiral into oblivion. Ultimately, then, the Framers
hoped that the constitutional structures would promote the
virtuous pursuit of the common good in the public sphere while
simultaneously protecting individual rights and liberties in the
private sphere.181 The Framers wanted balance, yet they knew
it would not be easily achieved. To attain the proper balance,
they needed to construct an integrated system consisting of a
liberal society—emphasizing individual liberty—and a
republican government—pursuing the common good.182 If they
failed to construct such an integrated system with balance
between the public and private spheres, then the entire
political-economic society would likely crumble.
Enlightenment thinkers typically conceived of the self
(or individual) as living in a world divided into dichotomous
realms.183 The spiritual was separate from the material. The
mind was separate from the body. Numerous philosophers,
from Descartes to Locke to Hume, who died in 1776, to Kant,
who was the Founders’ contemporary, conceptualized the self
by dealing with these characteristically modernist

179 See, e.g., MAIER, supra note 19, at 80-82 (emphasizing the Founders’

interest in both private economic activity and the public’s well-being).

180 THE FEDERALIST No. 10 (James Madison) (emphasis added); see also THE

FEDERALIST No. 14 (James Madison) (arguing that the new government would be “in
favour of private rights and public happiness”).
181 See THE FEDERALIST No. 10 (James Madison) (“To secure the public good and

private rights against the danger of such a faction, and at the same time to preserve the
spirit and the form of popular government, is then the great object to which our inquiries
are directed.”); THE FEDERALIST No. 14 (James Madison) (arguing that the new government
would be “in favour of private rights and public happiness”); SMITH, supra note 82, at 470-71
(“The founders of the United States did indeed define and construct their new nation in
accord with Enlightenment doctrines of individual liberties and republican self-governance
more than any regime before and most since . . . .”).
182 See NEDELSKY, supra note 18, at 174 (explaining the Framers as “blending

the[ ] discourses” of liberalism and republicanism).

183 PHILIP CUSHMAN, CONSTRUCTING THE SELF, CONSTRUCTING AMERICA 381 (1995).
28 BROOKLYN LAW REVIEW [Vol. 81:1

dichotomies.184 Given such a vision of the self vis-à-vis the

world, the Framers could readily imagine a citizen-self who
acted as a virtuous citizen in the public sphere (at least some of
the time) but also acted as a self-interested commercial and
economic striver in the private sphere.
The existence (or conception) of this dichotomous citizen-
self had numerous ramifications. The Framers’ citizen-self was
to remain well balanced, standing with one foot in the public
sphere and one foot in the private sphere.185 As such, the
Framers’ self served as a connection, a bridge, between the two
spheres. The citizen-self enjoyed liberty in both spheres, though
the meaning of liberty differed in each. In the public sphere,
liberty denoted individual freedom to participate in republican
government. In the private sphere, liberty denoted individual
freedom to satisfy one’s passions and interests, or at least to try
to do so.186 The self could use reason, too, in both the public and
private spheres. In the public sphere, reason could identify
substantive content. That is, the citizen-self reasoned—or
rationally deliberated with other citizens—to discern the
substance of the common good.187 In the private sphere, however,
reason was primarily instrumental. The self sought to satisfy a
goal arising from passions and interests. Thus, the private-sphere
self used reason to calculate logically the most advantageous
means for achieving that goal.188 Yet the Framers realized that
such calculations were often imprecise. From their standpoint,
individuals were swayed as much by their passions and prejudices
as by a rational assessment of their own opportunities.189

184 Much of modern philosophy has been devoted to attempting to bridge

various gaps in this dichotomous world. See generally RICHARD J. BERNSTEIN, BEYOND
OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS (1983); RICHARD
RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979).
185 NEDELSKY, supra note 18, at 12 (“Madison’s political thought was

characterized by an often agonized effort to find a working balance between the rights
of property and republican principles.”).
186 See CREATION, supra note 18, at 24-25, 410-11, 609 (distinguishing forms

of liberty); MCDONALD, supra note 18, at 4, 9-55 (emphasizing the ambiguity of terms
such as liberty).
187 See, e.g., THE FEDERALIST No. 1 (Alexander Hamilton) (calling on

Americans “to deliberate” about the merits of the proposed Constitution).

188 See POCOCK, supra note 18, at 464-65, 522-23 (discussing public and

private rationalities).
189 Alexander Hamilton, Letter to Robert Morris (1780), in 3 THE WORKS OF

ALEXANDER HAMILTON 319-33 (Henry Cabot Lodge ed., 1904) (cautioning not to
overestimate the ability of individuals to calculate rationally); NEDELSKY, supra note
18, at 76 (quoting Gouverneur Morris as questioning individual rationality).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 29

B. Overlap Between the Private and Public Spheres

With the citizen-self as a bridge, the public and private

spheres were conceptually (or intellectually) separable, but they
were not distinct. In practice, they often overlapped or bled into
each other. For example, religion (primarily Protestantism)
supposedly would be a matter for the private sphere under the
national Constitution—implicitly so in the original document and
explicitly so after the adoption of the Bill of Rights in 1791.190 The
Free Exercise Clause of the First Amendment protects freedom of
conscience, a Protestant prerequisite for individual religious
salvation. The Establishment Clause, meanwhile, prohibits the
institution of a national church, partly because such a church
would too closely resemble the Church of England.191 Yet religious
establishments were allowed to continue at the state level and did
so for several years.192 Unquestionably, then, in those states that
maintained establishments, the people officially recognized religion
in the public sphere. With or without such state establishments,
however, de facto Protestantism continued unabated throughout
the nation. And de facto Protestantism, whether emanating from
the private sphere or otherwise, strongly influenced the public
sphere: the Protestant self of the private sphere was also a citizen
of the public sphere. Unsurprisingly, then, conceptions of virtue
and the common good often reflected Protestant values and
interests.193 The First Congress did not hesitate to appoint
Protestant chaplains for both houses194 and to ask the President to
declare “a day of Thanksgiving and Prayer.”195

190 U.S. CONST. amend. I (containing the Establishment and Free Exercise

Clauses); see also THE FEDERALIST No. 51 (James Madison) (reasoning that the
“multiplicity of sects” would protect “religious rights”).
191 See STEPHEN M. FELDMAN, PLEASE DON’T WISH ME A MERRY CHRISTMAS: A

CRITICAL HISTORY OF THE SEPARATION OF CHURCH AND STATE 148-49, 155 (1997)
[hereinafter CRITICAL HISTORY] (discussing influence of the Church of England on American
thinking about establishment); Noah Feldman, From Liberty to Equality: The
Transformation of the Establishment Clause, 90 CAL. L. REV. 673, 690 (2002) (same).
192 ISAAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION: A

MORAL DEFENSE OF THE SECULAR STATE 118 (2005) (noting that Massachusetts
eliminated the final state establishment in 1833).
193 See CRITICAL HISTORY, supra note 191, at 158-68 (discussing the framing,

the Bill of Rights, and de facto Protestantism); ELLIS SANDOZ, A GOVERNMENT OF

LAWS: POLITICAL THEORY, RELIGION, AND THE AMERICAN FOUNDING 130-31, 151-61
(1990) (emphasizing the importance of Protestantism to Founders); SMITH, supra note
82, at 125 (arguing that the Constitution “assumes a predominantly Christian nation”).
194 THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA

TO THE PASSAGE OF THE FIRST AMENDMENT 218 (1986); ANSON PHELPS STOKES, 1
CHURCH AND STATE IN THE UNITED STATES 484-85 (1950).
195 Annals of Congress (Sept. 25, 1789), reprinted in 1 STOKES, supra note

194, at 486.
30 BROOKLYN LAW REVIEW [Vol. 81:1

Thus, while the Framers sought balance between the

public and private, they did not view the two spheres as
completely separate or exactly equal. Constitutional provisions
such as the Commerce Clause anticipated that the government
would sometimes be explicitly involved in private sphere affairs.196
More precisely, the Framers believed that the government could
diminish or infringe individual rights and liberties if the
government acted in pursuit of the common good (and otherwise
acted consistently with the Constitution).197 In this sense, the
balance was skewed in favor of the public over the private. Wilson
stated that “no government, either single or confederated, can
exist, unless private and individual rights are subservient to the
public and general happiness of the nation.”198 The Fifth
Amendment in the Bill of Rights—“nor shall private property be
taken for public use, without just compensation”—illustrates this
key point.199 On the one hand, the Constitution unequivocally
protects private property, but on the other hand, the government
can still take private property for public use—that is, to promote
the common good.200 To be sure, under the Fifth Amendment, the
government is required to pay just compensation for a taking. But
the government is otherwise permitted to regulate property and
the economic marketplace—anything short of an actual taking—
without paying compensation, so long as the regulation is for the
common good. In the Federalist Number 10, Madison unequivocally
stated that the government must have the power to regulate
individuals with diverse economic interests in the private sphere:
Those who hold and those who are without property have ever formed
distinct interests in society. Those who are creditors, and those who are
debtors, fall under a like discrimination. A landed interest, a
manufacturing interest, a mercantile interest, a moneyed interest, with
many lesser interests, grow up of necessity in civilized nations, and
divide them into different classes, actuated by different sentiments and

196 U.S. CONST. art. I, § 8, cl. 3.

197 Nedelsky argues that the Framers created a system where ordinary people
consent to their governance without truly governing themselves. NEDELSKY, supra note
18, at 149.
198 James Wilson, In the Pennsylvania Convention (Nov. 24, 1787), in 3

FARRAND, supra note 18, at 141, app. A; see WILLIAM J. NOVAK, THE PEOPLE’S
WELFARE 9-11 (1996) (emphasizing that the superiority of the public over the private
sphere continued at least through the nineteenth century).
199 U.S. CONST. amend. V.
200 In a similar vein, Madison repeatedly argued that the government could assist

a particular business enterprise if doing so would further the common good. James Madison,
Speech In First Congress (Apr. 9, 1789), reprinted in COMPLETE MADISON, supra note 55, at
276; James Madison, In Congress (1789), reprinted in COMPLETE MADISON, supra note 55,
at 272; James Madison, Letter to Clarkson Crolius (Dec. 1819), reprinted in COMPLETE
MADISON, supra note 55, at 270; James Madison, Letter to D. Lynch, Jr. (June 27, 1817),
reprinted in COMPLETE MADISON, supra note 55, at 271.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 31

views. The regulation of these various and interfering interests forms the
principal task of modern legislation . . . .201

C. Hamilton’s Report on Manufactures: Interference and

Aid Are Indispensable

The Framer with the best-developed vision of a

competitive free-market economy bustling with industry and
commerce was undoubtedly Hamilton.202 His understanding of the
relationship between the public and private spheres is, therefore,
especially illuminating. At that time, in the late eighteenth
century, England was deep into its Industrial Revolution and had
traveled far along the transitional road from mercantilism to
capitalism. Hamilton strongly admired the British political-
economic system and sought to create an American system that
would move in a roughly similar direction.203
In his position as the first Secretary of the Treasury, in
President George Washington’s administration, Hamilton
attempted to implement his vision of an economic system in
accord with the recently ratified Constitution. From Hamilton’s
perspective, the nation faced an impending financial catastrophe
largely because the state and national governments still carried
heavy debts from the Revolutionary War. During the 1780s, the
ineffective state and national governments could not meet those
debts, so public securities lost value and public credit vanished.204
Consequently, the Framers’ desire to protect property rights while
simultaneously strengthening the national government required
that the nation be on firm financial footing. To achieve these
goals, Hamilton conceived a “grand design” for a “utopian
financial system.”205 Hamilton laid out this plan in three reports
to Congress: Report on Public Credit (January 9, 1790), Report on

201 THE FEDERALIST No. 10 (James Madison) (Project Gutenberg ed., 2004)

(emphasis added). The Constitution did not embody a “free market” approach to
economic activity. White, supra note 50, at 84 (“If anything, the document
assumes . . . a promotional or regulatory relationship between the state and markets.”).
202 See STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 93, 113-16

(1993) (describing Hamilton’s plan); HEILBRONER & SINGER, supra note 19, at 85 (arguing
Hamilton was ahead of his times); DAVID F. PRINDLE, THE PARADOX OF DEMOCRATIC
CAPITALISM 29-30 (2006) (arguing that Hamilton favored capitalism over democracy);
SHARP, supra note 30, at 34-43 (describing Hamilton’s plan); EMPIRE, supra note 118, at 98
(describing Hamilton’s plan for a national bank as “bold and novel”).
203 1 FARRAND, supra note 18, at 282-89 (June 18, 1787); MCDONALD, supra

note 18, at 115; SHARP, supra note 30, at 33, 43.

204 MCDONALD, supra note 18, at 94-96, 138-42; NEDELSKY, supra note 18, at 125-26.
205 ELKINS & MCKITRICK, supra note 202, at 93; see EMPIRE, supra note 118,

at 95-139 (describing the Federalist program of the 1790s).

32 BROOKLYN LAW REVIEW [Vol. 81:1

a National Bank (December 13, 1790), and Report on

Manufactures (December 5, 1791).206
Hamilton’s Report on Manufactures, in particular,
illuminates his view of the American political-economic system. In
this Report, Hamilton argued that the national government
should actively encourage the development of manufacturing in
the United States.207 He articulated the main objections to such
government support and then responded to each objection. For
instance, Hamilton acknowledged that some Americans viewed
manufacturing as being opposed to agriculture.208 Thus, any
support for manufacturing was necessarily antagonistic to
agriculture. Moreover, many political leaders thought this conflict
between manufacturing and agriculture reflected the regional
interests of the North and South, respectively.209 In fact, though
Hamilton did not mention him by name, Jefferson was known to
believe that the strength of the nation lay in its agrarianism.210
Jefferson, it should be noted, was the first Secretary of State and
owned the Virginia plantation, Monticello, worked by between
100 to 140 slaves.211
Jefferson’s antagonism to Hamilton’s financial plan and
Hamilton’s response require elaboration. Two streams of
thought, one British and one French, helped shape Jefferson’s
outlook. In the early eighteenth century, the British Country
theorists, including John Trenchard and Thomas Gordon,
argued that the enhanced power of England’s central
government, tied to commercial interests, had corrupted the
republican British government.212
Meanwhile, in the latter part of the eighteenth century,
the French Physiocrats advocated for minor reforms in an effort
to preserve the ancient French regime (that would subsequently
collapse in the French Revolution).213 The Physiocrats opposed
industrialization and instead argued that the natural
development of an agrarian economy led to prosperity; all moral

206 See EMPIRE, supra note 118, at 95-103 (describing Hamilton’s program).
207 Alexander Hamilton, Report on Manufactures, 3 ANNALS OF CONG. 971 (Joseph
Gales ed., 1834) (Communicated to the House of Representatives, Dec. 5, 1791).
208 Id. at 1005-06.
209 Id.
210 Thomas Jefferson, Notes on the State of Virginia (1787), reprinted in THOMAS

JEFFERSON: WRITINGS 123 (Library of America, 1984); SEAVOY, supra note 19, at 84-85.
211 FINKELMAN, supra note 116, at 193-94; HENRY WIENCEK, MASTER OF THE

MOUNTAIN 13 (2012).
212 THE ENGLISH LIBERTARIAN HERITAGE (David L. Jacobson ed., 1965 ed.)

(writings of Trenchard and Gordon); see BAILYN, supra note 18, at 34-35 (mentioning
civic humanist writers such as John Milton and James Harrington); POCOCK, supra
note 18, at 406-08, 486-87 (distinguishing Court and Country ideologies).
213 GALBRAITH, supra note 19, at 50.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 33

and economic values were based on the land and agriculture.214

From Jefferson’s perspective, the Country ideology demonstrated
that Hamilton’s desire to strengthen the national government, in
conjunction with commercial development, would corrupt the
American republic.215 And the Physiocrats’ writings suggested to
Jefferson that the American political-economic system’s strength
grew from the existence of independent and self-sufficient
agrarian households.216 Even before the conflict with Hamilton
had emerged, Jefferson had written that “[t]hose who labour in the
earth are the chosen people of God,” while manufacturers displayed
“subservience and venality.”217 In case his views were not clear
enough, Jefferson added, “The mobs of great [manufacturing] cities
add just so much to the support of pure government, as sores do to
the strength of the human body.”218 And several years later, soon
after Jefferson became president, he wrote to his friend and
former Physiocrat, Pierre Samuel du Pont de Nemours, to praise
“the agricultural inhabitants” of the United States and to
distinguish them sharply “from those of the cities.”219
Hamilton responded to the Jeffersonian position not by
attacking agriculture, but by explaining that such an opposition
between manufacturing and agriculture was false. Government
support for manufacturing would inevitably benefit agriculture
and the national economy as a whole.220 In other words, Hamilton
maintained that support for manufacturing would promote the
common good. His contention that manufacturing and agriculture
were compatible had an obvious political slant: deflection of
southern hostility toward northern manufacturing. And to a
degree, all of Hamilton’s arguments in his Report were politically
oriented. He wanted to persuade Congress to enact measures that
would promote manufacturing—with manufacturing being but
one component of his complex program to put the young nation’s
finances in order.221

214 Id. at 46-56; LAWRENCE S. KAPLAN, THOMAS JEFFERSON: WESTWARD THE

COURSE OF EMPIRE 51-52 (1999); MCDONALD, supra note 18, at 98, 106-07.
215 ELKINS & MCKITRICK, supra note 202, at 13-19 (paralleling the Jefferson-

Hamilton dispute with the earlier English Country-Court dispute); EMPIRE, supra note
118, at 287 (discussing influence of Country ideology on Jefferson).
216 ELKINS & MCKITRICK, supra note 202, at 199-201; HEILBRONER & SINGER,

supra note 19, at 79-81; KAPLAN, supra note 214, at 51-52; MCDONALD, supra note 18,
at 107-08.
217 Jefferson, supra note 210, at 290.
218 Id. at 291.
219 Thomas Jefferson, To P.S. Dupont de Nemours (Jan. 18, 1802), reprinted in

JEFFERSON, supra note 210, at 1099.

220 Alexander Hamilton, Report on Manufactures, 3 ANNALS OF CONG. 971, 973,

1006 (Joseph Gales ed., 1834).

221 ELKINS & MCKITRICK, supra note 202, at 110-14.
34 BROOKLYN LAW REVIEW [Vol. 81:1

Naturally, then, Hamilton’s next argument was politically

pointed, but it also related specifically to the constitutional plan
for the public and private spheres. One primary objection to
Hamilton’s proposal for government support of manufacturing
was that, quite simply, the government should not intrude on the
free operation of the economic marketplace. In other words, the
objection was that laissez-faire was better than government
regulation or interference. Hamilton stated the laissez-faire
objection as follows:
To endeavor, by the extraordinary patronage of Government, to
accelerate the growth of manufactures, is, in fact, to endeavor, by force
and art, to transfer the natural current of industry from a more to a less
beneficial channel. Whatever has such a tendency, must necessarily be
unwise: indeed it can hardly ever be wise in a Government, to attempt
to give a direction to the industry of its citizens. This, under the quick-
sighted guidance of private interest, will, if left to itself, infallibly find its
own way to the most profitable employment; and it is by such
employment that the public prosperity will be most effectually
promoted. To leave industry to itself, therefore, is, in almost every case,
the soundest as well as the simplest policy.222

Hamilton, in this passage, of course did not explicitly use the term
“laissez-faire,” but he was unquestionably articulating the laissez-
faire position against government control.223 He would reiterate it
later in the Report: “[I]ndustry, if left to itself, will naturally find
its way to the most useful and profitable employment,” Hamilton
wrote, “whence it is inferred, that manufactures, without the aid
of Government, will grow up as soon and as fast as the natural
state of things and the interest of the community may require.”224
As one would expect from Hamilton, he answered the
laissez-faire objection with a sophisticated and powerful response.
He argued, in effect, that the economic marketplace is riddled
with imperfections. Any individual who might contemplate the
start of a new manufacturing business would be confronted with
numerous obstacles, totally apart from supply and demand. Such
an individual would be discouraged by considerations, such as
the strong influence of habit and the spirit of imitation, the fear of
want of success in untried enterprises, the intrinsic difficulties
incident to first essays towards a competition with those who have
previously attained to perfection in the business to be attempted, the
bounties, premiums, and other artificial encouragements, with which

222 Hamilton, supra note 207, at 972.

223 Id.
224 Id. at 988.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 35

foreign nations second the exertions of their own citizens in the

branches, in which they are to be rivalled.225

To counter such market imperfections, Hamilton maintained

that government “interference and aid . . . are indispensable.”226
To be sure, Hamilton acknowledged that the laissez-faire
objection was reasonable in the abstract, but abstractness was
also the root of its weakness. The laissez-faire position arose
from “the pursuit of maxims too widely opposite.”227 In other
words, it was an argument based on utopian ideals, but
Hamilton, being a pragmatic realist, explained that such ideals
rarely applied in their pristine form to the real world. “Most
general theories . . . admit of numerous exceptions; and there
are few, if any, of the political kind, which do not blend a
considerable portion of error with the truths they inculcate.”228
Instead of following utopian ideals, Hamilton recommended a
more balanced approach that weighed the various factors in the
particular circumstances. Thus, in assessing the arguments,
Congress should evaluate “the considerations which plead in
favor of manufactures, and which appear to recommend the
special and positive encouragement of them in certain cases, and
under certain reasonable limitations.”229 Finally, as numerous
historians have observed, the ultimate political goal of
Hamilton’s entire financial plan was clear: he wanted to
persuade the wealthy to support—not control—the national
government.230 As Lance Banning put it, Hamilton “never meant
for monied men to use the government.”231 In fact, if anything,
Hamilton “intended the reverse.”232 Hamilton did not intend to
have the wealthy control the government for their own benefit.

D. The Framers’ Vision: Achieving the Balance

As Hamilton’s rhetoric in the Report on Manufactures

suggests, it is important not to overstate the clarity of the

225 Id.; see also id. at 989 (reiterating obstacles in briefer terms).
226 Id. at 989.
227 Id. at 973.
228 Id.
229 Id. Stephen Holmes explains that Smith followed David Hume (who

strongly influenced the Framers) in denouncing “the false ‘love of simplicity.’” Stephen
Holmes, The Secret History of Self-Interest, in BEYOND SELF-INTEREST 267, 269 (Jane
J. Mansbridge ed., 1990) (quoting Hume). Hume (and Smith), in other words, rejected a
“[m]otivational reductionism” that would focus solely on self-interest. Id. at 275.
230 LANCE BANNING, THE JEFFERSONIAN PERSUASION 139 (1978); Richard

Hofstadter, Federalists and Republicans, in 1 GREAT ISSUES, supra note 28, at 141;
PRINDLE, supra note 202, at 32; EMPIRE, supra note 118, at 97.
231 BANNING, supra note 230, at 139.
232 Id.
36 BROOKLYN LAW REVIEW [Vol. 81:1

Framers’ vision. There were many ambiguities in their vision,

partly because of the changing contemporaneous notions of
government and the market and partly because the Constitution
was drafted and ratified in a political crucible. In fact, it is worth
mentioning one of the largest ambiguities, because some
commentators might mistakenly claim that it suggests the
constitutionalization of a fully capitalist, competitive free market.
The Contract Clause states: “No State shall . . . pass any . . . Law
impairing the Obligation of contracts . . . .”233 Toward the end of
the Convention, Rufus King moved to add a contract clause.234
After a brief, generally negative discussion, the motion was
dropped.235 Even so, the Committee of Style (consisting of five
delegates) subsequently added a contract clause on their own,
without any authorization from the other delegates.236 No
documentation clarifies the thoughts of the committee members
regarding the inclusion or meaning of this clause.237 During the
ratification debates, the Contract Clause was most commonly
understood as “simply a catchall extension of the bans on paper
money and legal-tender laws.”238 That is, most viewed it as a
relatively unimportant reassertion that the state governments
would not be able to undermine private debts or disrupt credit
and finances. At the Virginia Ratification Convention, however,
Patrick Henry and George Mason worried that the clause would
cost the state money by forcing it to redeem old continental
debts.239 No one suggested that the clause would protect profit-
driven exchanges in a competitive free market—or in other words,
capitalism. After all, American common law had not yet identified
a separate realm of contract law based on marketplace values.240
Keeping in mind the ambiguities of the Framers’ overall
vision, as well as more specific ambiguities (such as the Contract
Clause), it is nonetheless reasonable to conclude that the Framers
created a political-economic system to balance the public and
private spheres. The government was republican-democratic, and
the economy was a hybrid of a dissipating mercantilism and an
incipient capitalism. For the sake of stylistic simplicity, I will
refer to the Framers’ system as democratic-capitalist, but the
imprecision of this shorthand label should be evident. The
government system was not fully democratic. In most states,

233 U.S. CONST. art. I, § 10, cl. 1.

234 2 FARRAND, supra note 18, at 439 (Aug. 28, 1787).
235 Id. at 439-40.
236 Id. at 597 (Report of the Committee of Style).
237 MCDONALD, supra note 18, at 270-73.
238 Id. at 274.
239 MAIER, supra note 18, at 285; MCDONALD, supra note 18, at 274.
240 HORWITZ, supra note 19, at 180-81; MCDONALD, supra note 18, at 113-14.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 37

white, Protestant men possessing some degree of wealth could

vote, but large swathes of the population, including women, racial
minorities, some religious minorities, and the poor, were excluded
from directly participating in government.241 Of course, some of the
broad proscriptions on suffrage would eventually be eliminated,
though there has not been steady and uninterrupted progress
toward full suffrage in the United States.242 Meanwhile, capitalism
would continue to develop during the early nineteenth century,
but the United States could not be accurately described as
capitalist until the eradication of slavery. Over time, then, the
government would become more democratic, and the economy
would become more capitalist.
In any event, under republican democracy, the pursuit of
the common good both empowered and limited the government.243
This was as true at the state and local levels as at the national
level. Government could act in almost any manner—even taking
property—so long as it was for the common good, but
simultaneously, government could not act unless it was for the
common good. In fact, throughout much of the nineteenth century,
a “well-regulated” or “well-ordered society,” including a well-
regulated marketplace, was understood to evince republican-
democratic government.244 During this era, economic marketplaces
were local, for the most part. Rudimentary transportation and
communication technologies limited the development of a national
marketplace until after the Civil War.245 Thus, municipal and
state governments frequently exercised their police powers to
regulate the economy, particularly in the antebellum decades.246
Such regulations could be purely promotional—intended to
generate economic activity—or restrictive, or both.247 Moreover,

241 KEYSSAR, supra note 92, at 336-41 (state suffrage requirements through 1790).
242 U.S. CONST. amend. XV (prohibiting denial of the vote based on race
(1870)); id. amend. XIX (prohibiting denial of the vote based on sex (1920)); KEYSSAR,
supra note 92, at xxi-xxiv (explaining uneven advances in suffrage).
243 William Novak devotes his book, The People’s Welfare, to discussing this

simultaneous enhancement and limitation of government power at the state level. See
NOVAK, supra note 198.
244 Id. at 1-2; see Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85-86 (1851)

(emphasizing “well ordered governments”).

245 FREE EXPRESSION, supra note 21, at 167-69; HEILBRONER & MILBERG,

supra note 19, at 87-88.

246 NOVAK, supra note 198, at 10, 86, 237 (emphasizing local control,

especially over economic relations).

247 Cf., HALL, supra note 19, at 87-88 (emphasizing that the nation in its early

decades had a mixed rather than laissez-faire economy); White, supra note 50, at 84
(“[T]he usual model of economic activity in late eighteenth century America, [was one]
in which towns, colonies, and states distributed land grants, exercised eminent domain
powers, granted exclusive franchises to promote the building of turnpikes and bridges,
and created opportunities for public officeholders to attach private emoluments to their
38 BROOKLYN LAW REVIEW [Vol. 81:1

regulations were rarely, if ever, neutral; instead, some individuals

or groups in society would be favored over others.248
Given the frequency and effects of economic regulations,
individuals sometimes challenged the legality (or constitutionality)
of government actions. These judicial challenges often invoked
state constitution due process clauses or the analogous law-of-the-
land provisions, but they also sometimes relied on common law or
natural law principles.249 Regardless of the specific legal
foundation for the challenge, the key to the typical judicial
analysis was the categorization of the government purpose: Was
it for the common good, which was permissible—or was it merely
for the benefit of one private interest over another, which was
impermissible? The law could not be allowed to take wealth from
one societal group and transfer it to another group for no reason
other than that the favored group controlled the government.
Chief Justice Stephen Hosmer of Connecticut phrased this
judicial approach in typical terms: “If . . . the legislature should
enact a law, without any assignable reason [read: the common
good], taking from A. his estate, and giving it to B., the injustice
would be flagrant, and the act would produce a sensation of
universal insecurity.”250
Nevertheless, federal and state courts consistently upheld
government actions that they deemed to be in the pursuit of the
common good, even when those actions allegedly infringed on
individual rights and liberties—including the right to property.
For instance, in an 1845 case, an entrepreneur sought to sell
poultry in Boston that he had acquired in New Hampshire.251 He
ran afoul, however, of strict municipal regulations on the
marketplace. Specifically, the city required a seller to show “that
all the said articles are the produce of his own farm, or of some

offices.”). A growing emphasis on individualism was not equivalent to laissez-faire.

WALTER LIGHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 191 (1995).
248 HALL, supra note 19, at 88 (arguing that the question was not whether to

regulate but who would benefit from regulation); HORWITZ, supra note 19, at xiv-xv
(emphasizing that government regulations influenced the distribution of wealth); William J.
Novak, The Myth of the “Weak” American State, 113 AM. HIST. REV. 752, 754, 769-71 (2008)
(emphasizing that government exercised infrastructural power, which inevitably influenced
the distribution of wealth); see JERRY L. MASHAW, CREATING THE ADMINISTRATIVE
CONSTITUTION 3-12, 18-25 (2012) (showing that there was far more regulation of the
economy, even at the federal level, than is ordinarily acknowledged).
249 See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J.) (relying

on natural law); Vanzant v. Waddel, 10 Tenn. (2 Yer.) 260, 260 (1829) (relying on state
law of the land provision).
250 Goshen v. Stonington, 4 Conn. 209, 221 (1822). For additional examples,

see State Bank v. Cooper, 10 Tenn. (2 Yer.) 599 (1831), Eakin v. Raub, 12 Serg. &
Rawle 330 (Pa. 1825), Calder v. Bull, 3 U.S. (3 Dall.) 386, 394 (1798), and VanHorne v.
Dorrance, 28 F. Cas. 1012 (C.C.D. Pa. 1795).
251 Commonwealth v. Rice, 50 Mass. (9 Met.) 253 (1845).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 39

farm not more than three miles distant from his own dwelling-
house.”252 The seller objected, contending that “the by-law is
contrary to common right, in restraint of trade, against public
policy, unreasonable and void.”253 The court upheld the regulations
in an opinion by Lemuel Shaw. Shaw reasoned that the city
necessarily had the power to “control” its “accommodations” for
sales so “as best to promote the welfare of all the citizens.”254 Shaw
concluded, “[W]e think . . . [the regulations] are well calculated to
promote the public and general benefit,” notwithstanding the
restrictions on the economic marketplace.255 Chancellor James
Kent of New York succinctly summarized this fundamental
judicial perspective: “[P]rivate interest must be made subservient
to the general interest of the community.”256 The conclusion from
the Rice case and others like it is unmistakable; the effort to
balance private liberty with the common good of the public led to
a system that was not fully democratic and not fully capitalist.

V. FREE SPEECH AND A FREE PRESS

And what about free expression? In particular, did the

adoption of the First Amendment, with its express protections of
free speech and a free press, accord greater protection to liberty of
expression than to other liberties?257 Or did the constitutional
guarantee of free expression protect property rights and other
wealth in some direct manner?
The lack of importance attached to the adoption of a Bill of
Rights makes construing the First Amendment’s original
meaning difficult. The overwhelming majority of delegates to the

252 Id. at 256.

253 Id. at 258.
254 Id. at 258-59.
255 Id.; see NOVAK, supra note 198, at 51-233 (cataloguing examples of

government regulations and restrictions upheld as promoting the common good or the
people’s welfare). For similar cases, see Thorpe v. Rutland & Burlington R.R. Co., 27
Vt. 140, 155 (1855), In re Vandine, 23 Mass. (6 Pick.) 187, 190-92 (1828), and
Vanderbilt v. Adams, 7 Cow. 349, 351-52 (N.Y. 1827).
256 JAMES KENT, 2 COMMENTARIES ON AMERICAN LAW 276 (1827). Although

courts have readily upheld numerous government actions, the republican concept of
limited government was not specious. E.g., State Bank v. Cooper, 10 Tenn. (10 Yer.)
599 (1831) (invalidating a law creating a special court for the Bank of Tennessee);
Pingry v. Washburn, 1 Aik. 264 (Vt. 1826) (invalidating a turnpike toll law).
257 For a more extensive discussion of free expression in the early years of

nationhood, including the Sedition Act crisis, see generally FREE EXPRESSION, supra note
21, at 46-100; LEONARD W. LEVY, EMERGENCE OF A FREE PRESS (1985); David A. Anderson,
The Origins of the Press Clause, 30 UCLA L. REV. 455 (1983). Helpful sources on the
adoption of the Bill of Rights can be found in the following collections: THE COMPLETE BILL
OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS (Neil H. Cogan ed., 1997)
[hereinafter COGAN]; THE FOUNDERS’ CONSTITUTION (Philip B. Kurland & Ralph Lerner
eds., 1987) [hereinafter FOUNDERS]; 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY
(Bernard Schwartz ed., 1971) [hereinafter Schwartz, DOCUMENTARY].
40 BROOKLYN LAW REVIEW [Vol. 81:1

Constitutional Convention believed that a Bill of Rights, which

would include explicit protections for expression, was
unnecessary. Several times, Pinckney suggested considering a
free press clause, but the delegates never followed his lead.258
Toward the end of the Convention, Gerry and Mason sought to
add a Bill of Rights, which Mason asserted “might be prepared in
a few hours.”259 Gerry’s motion, seconded by Mason, failed.260
Sherman expressed the general sentiment, “It is unnecessary—
The power of Congress does not extend to the Press.”261 In other
words, for the most part, the Framers believed that the scheme of
enumerated powers in Article I would limit congressional power
and render a Bill of Rights superfluous.262 Once the ratification
debates had begun, however, the Anti-Federalist opponents of the
Constitution seized on the lack of a Bill of Rights as an issue with
political traction. Given that many of the state constitutions
contained a Bill of Rights, why had the Framers not included one?
Were the Framers and the Federalist supporters of ratification
seeking to create a centralized national government that would
tyrannize the people?263
Eventually, under political pressure, Madison and the
other Federalists promised to add a Bill of Rights if the states
first ratified the Constitution as originally proposed.264 And in
fact, after ratification, Madison was elected to serve in the first
House of Representatives, where he promptly introduced a draft
Bill of Rights on June 8, 1789.265 Madison viewed the proposed
amendments as fulfilling his political promise but as otherwise
being relatively unimportant. When presenting his draft
amendments, he explained that the addition of a Bill of Rights

258 3 FARRAND, supra note 18, at 599 app. D (The Pickney Plan); 2 id. at 334,

341 (Aug. 20, 1787), 617 (Sept. 14, 1787).

259 2 id. at 587-88 (Sept. 12, 1787).
260 Id. at 588 (Sept. 12, 1787).
261 Id. at 618 (Sept. 14, 1787).
262 See, e.g., James Wilson, Speech at a Meeting in Philadelphia (Oct. 6, 1787),

reprinted in COGAN, supra note 257, at 102 (arguing that Congress’s enumerated powers
would not allow infringements on individual liberties such as freedom of the press).
263 HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR (1981). For

examples of Anti-Federalists questioning the lack of protection of freedom of the press, see
Centinel, No. 1 (Oct. 1787), reprinted in 5 FOUNDERS, supra note 257, at 13, 19-20; Federal
Farmer, No. 4 (Oct. 12, 1787), reprinted in 5 FOUNDERS, supra note 257, at 54, 59; Centinel,
No. 2 (Oct. 24, 1787), reprinted in COGAN, supra note 257, at 103, 103-04; Federal Farmer,
No. 16 (Jan. 20, 1788), reprinted in 5 FOUNDERS, supra note 257, at 79, 85-86.
264 Letter from James Madison to Alexander Hamilton (June 22, 1788),

reprinted in 2 Schwartz, DOCUMENTARY, supra note 257, at 848; see James Madison,
Speech in the Virginia Ratifying Convention on Ratification and Amendments (June 24,
1788), reprinted in MADISON, WRITINGS, supra note 34, at 401, 406-07.
265 Proposal by Madison in House (June 8, 1789), reprinted in COGAN, supra

note 257, at 83.

2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 41

would be “neither improper nor altogether useless.”266 He asked

that Congress “devote but one day to this subject, so far as to
satisfy the public that we do not disregard their wishes.”267 The
rest of the Federalist-controlled House apparently agreed with
Madison’s assessment of the task. After all, from their perspective,
the Constitution did not grant Congress power to infringe on
individual liberties such as the freedoms of speech and of the
press. James Jackson of Georgia first stated that he thought a Bill
of Rights was unnecessary but added that “if gentlemen should
think it a subject deserving of attention, they will surely not
neglect . . . more important business . . . . I am against taking up
the subject at present.”268 South Carolinian Aedanus Burke
agreed that until “other important subjects are determined, he
was against taking this up.”269 Madison himself explained that he
did not wish, at present, “to enter into a full and minute
discussion of every part of the subject, but merely to bring it
before the House, that our constituents may see we pay a proper
attention to a subject they have much at heart.”270
Congress finally considered the Bill of Rights on July 21,
1789, six weeks after Madison had introduced the proposed
amendments.271 As the future Bill of Rights wound its way
through the congressional process, the most striking aspect of the
discussions was the paucity of debate about the proposed rights’
substantive meanings, including free speech and a free press. The
bulk of the congressional deliberations revolved instead around
the form or felicity of phrasing in the various amendments.272
Gerry, now a member of the House as well, expressed his disgust
with his congressional colleagues who were saying “it is necessary
to finish the subject [merely] in order to reconcile a number of our
fellow-citizens to the government.”273 Thus, if one wants to
understand the content or substantive meaning of free speech or a
free press, one will not find it within the congressional debates.
Furthermore, the ratification debates in the various
states were inadequately documented and therefore do not
elucidate the meaning of the First Amendment. It is clear,
however, that Congress had included the freedoms of speech

266 House of Representatives, Amendments to the Constitution (June 8, 1789)

(from the Annals of Congress), reprinted in 5 FOUNDERS, supra note 257, at 20, 26.
267 Id. at 22.
268 Id. at 20, 21.
269 Id. at 21; see id. (Benjamin Goodhue of Massachusetts arguing similarly).
270 Id. at 22.
271 2 Schwartz, DOCUMENTARY, supra note 257, at 1050.
272 Anderson, supra note 257, at 478.
273 House of Representatives, Amendments to the Constitution (Aug. 15, 1789)

(from the Annals of Congress), reprinted in 5 FOUNDERS, supra note 257, at 204.
42 BROOKLYN LAW REVIEW [Vol. 81:1

and press in the third of the proposed articles (or amendments)

sent to the states for ratification. The states rejected the first
two proposed amendments, and thus the third article moved up
ordinally, almost by happenstance, to become the First
Amendment.274 The ultimate position of free expression in the
First Amendment, consequently, should not be construed to
suggest that Congress thought that the freedoms of speech and
press were more important than other liberties.
At that time, state constitutions typically had free press
clauses, but only two had explicit free speech clauses.275 In the
states, the constitutional concept of free expression (primarily a
free press) largely echoed the common law. The government could
not impose a prior restraint—such as requiring a license or permit
before publishing—but government could impose subsequent
punishment on criminal statements, particularly seditious libel
(criticisms of government officials or policies). In a Pennsylvania
case decided in 1788, Chief Justice Thomas McKean reasoned
that prior restraint is prohibited but that criminal punishment
after publication is consistent with “true liberty” if the writing
was intended to “delude and defame” rather than to advance the
“public good.”276 Approximately a decade later, in 1797, McKean
still understood free expression in similar terms:
The liberty of the press is, indeed, essential to the nature of a free State,
but this consists in laying no previous restraints upon public actions,
and not in freedom from censure for criminal matter, when published.
Every freeman has an undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mischievous or illegal, he
must take the consequences of his temerity.277

Ambiguity in the American law of free expression

centered on the degree to which states should follow Zengerian
reforms—modifications of the common law implicitly followed
in the 1735 trial of John Peter Zenger.278 Zengerian reforms
were twofold. First, juries rather than judges should decide
whether the disputed speech is libelous. Second, truth should
be a defense to a charge of seditious libel. (Under the English
common law of the eighteenth century, not only was truth not a
defense, but it was grounds for aggravation of the crime.)

274 Senate Journal (Sept., 1789), reprinted in 2 Schwartz, DOCUMENTARY,

supra note 257, at 1163-65.

275 FREE EXPRESSION, supra note 21, at 64.
276 Respublica v. Oswald, 1 Dall. 319 (Pa. 1788), reprinted in 5 FOUNDERS,

supra note 257, at 124, 127.

277 LEVY, supra note 257, at 212-13 (quoting Thomas McKean).
278 Id. at 37-45.
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 43

In 1790 and 1791, while the states were debating

ratification of the proposed Bill of Rights, James Wilson delivered
at the College of Philadelphia (University of Pennsylvania) the
seminal lectures on American constitutional law. When he came
to free expression, Wilson stated, “The citizen under a free
government has a right to think, to speak, to write, to print, and
to publish freely, but with decency and truth, concerning public
men, public bodies, and public measures.”279 He reasoned,
therefore, that the law of seditious libel is “wise and salutary
when administered properly, and by the proper persons.”280 What
constitutes wise and salutary administration of seditious libel,
according to Wilson? Although not all Americans would have
agreed, Wilson insisted that Zengerian reforms must be followed
in full: truth should always be a defense, and juries should always
decide whether the disputed speech was libelous.281
Thus, the meaning of the First Amendment protection of
free speech and a free press was murky, to say the least.
Unquestionably, Americans highly valued free expression; a
cultural tradition of dissent and speaking one’s mind reached
back to colonial times and the Revolution.282 Many Americans had
declared that free expression was the grand palladium, the
bulwark of liberties, thus echoing the British Country theorists,
Trenchard and Gordon, who had written in 1720 that “Freedom of
Speech is the great Bulwark of Liberty; they prosper and die
together.”283 For example, the Virginia Bill of Rights, adopted
nearly one month before the Declaration of Independence,
proclaimed “[t]hat the freedom of the press is one of the great
bulwarks of liberty, and can never be restrained but by despotic
governments.”284 During the ratification debates, Anti-Federalists
repeatedly declared that freedom of the press was the “grand” or
“sacred palladium” of freedom.285 In fact, Madison’s first draft of
the article that would eventually be ratified as the First

279 James Wilson, 2 THE WORKS OF JAMES WILSON 287 (James DeWitt

Andrews ed., 1896 ed.).

280 Id. at 395.
281 Id. at 395-97.
282 FREE EXPRESSION, supra note 21, at 3-13, 46-60.
283 Of Freedom of Speech: That the same is inseparable from Publick Liberty

(Feb. 4, 1720), reprinted in THE ENGLISH LIBERTARIAN HERITAGE 38, 42 (David L.

Jacobson ed., 1965 ed.) (signed by Thomas Gordon); see, e.g., LEVY, supra note 257, at
67 (citing Samuel Adams, Boston Gazette, Mar. 14, 1768, emphasizing “the bulwark of
the People’s Liberties”).
284 Virginia Bill of Rights (1776), reprinted in 2 POORE, supra note 18, at 1908, 1909.
285 John Dawson at Virginia Ratification Convention (June 24, 1788), reprinted in

COGAN, supra note 257, at 101; Patrick Henry at Virginia Ratification Convention (June 14,
1788), reprinted in 2 Schwartz, DOCUMENTARY, supra note 257, at 800; Cincinnatus, No. 2,
to James Wilson (Nov. 8, 1787), reprinted in 5 FOUNDERS, supra note 257, at 122; Centinel,
No. 2 (Oct. 24, 1787), reprinted in COGAN, supra note 257, at 103.
44 BROOKLYN LAW REVIEW [Vol. 81:1

Amendment read as follows: “The people shall not be deprived or

abridged of their right to speak, to write, or to publish their
sentiments; and the freedom of the press, as one of the great
bulwarks of liberty, shall be inviolable.”286
Even so, the law of free expression in the states was
ambiguous partly because of the uncertain Zengerian reforms.
And the congressional debates and subsequent state ratifications
of the First Amendment did nothing to clarify the ambiguous
meaning of free speech and a free press. No one, it should be
added, ever suggested that free speech or a free press directly
protected the expenditure of wealth—whether in relation to
politics or otherwise. In any event, the ambiguity of the First
Amendment would contribute to controversy in the 1790s. The
Federalists, recently unified in support of constitutional
ratification, split into two opposed “proto-parties,” the Republicans
(led by Jefferson and Madison) and the Federalists (led by
Hamilton).287 Jefferson and the Republicans’ opposition to
Hamilton’s financial plan for the nation was but one of several
contentious issues, albeit an explosive one.288 Throughout the
decade, the conflict between the Republicans and Federalists
grew increasingly bitter. In the midst of John Adams’s term as
President, the Federalists still controlled both houses of Congress,
as well as the executive branch, but they then made a
monumental political miscalculation. They enacted the Sedition
Act of 1798 and began prosecuting Republican printers and
politicians for seditious libel.289 Free expression suddenly became
a concrete and combustive political issue.290
From the Federalist perspective, Congress had the power
to enact the Sedition Act despite the First Amendment. True,
Congress could not abridge free speech or a free press, but in the
1790s, one could have reasonably concluded that seditious libel
was not within the realm or category of free expression. In other
words, the First Amendment precluded Congress from restricting
only certain types of speech and writing, and seditious libel was
not among the protected types.291 The freedoms of speech and of
the press were, from this perspective, beside the point: Congress

286 Proposal by Madison in House (June 8, 1789), reprinted in COGAN, supra

note 257, at 83.

287 SHARP, supra note 30, at 8-9.
288 ELKINS & MCKITRICK, supra note 202, at 93, 229; SHARP, supra note 30, at 33-41.
289 Sedition Act of 1798, § 2-4, 1 Stat. 596-97.
290 See generally FREE EXPRESSION, supra note 21, at 70-100 (discussing

Sedition Act crisis).

291 See, e.g., The Legislature of Rhode Island on the Virginia Resolutions (Feb.

1799), in 1 GREAT ISSUES, supra note 28, at 184-86 (arguing Congress acted within its
power to promote the general welfare).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 45

could criminally punish criticisms of public officials and policies.

In fact, the Federalists believed that they had enacted the most
liberal seditious libel statute imaginable because the Sedition Act
fully incorporated Zengerian reforms.292
In terms of the First Amendment’s contemporaneous
meaning, the Republicans’ initial response was significant. They
articulated a jurisdictional, or federalism-based, argument: the
states, but not the national government, were empowered to
punish seditious libel.293 Congress’s enumerated powers, the
Republicans emphasized, did not include a power to punish
seditious libel. The First Amendment reinforced this congressional
impotency. Most importantly, then, the Republicans did not claim
that government punishment of seditious libel contravened the
meaning of free speech or a free press. To the contrary, they
argued that if punishment was merited because of the publishing
of libel, then state governments could impose the punishment,
regardless of state constitutional guarantees of free expression.294
So, for instance, one month after the first Sedition Act prosecution,
Kentucky protested the Federalists’ actions by issuing a legislative
resolution that articulated the jurisdictional argument.295
(Jefferson actually wrote the first draft of the resolution.296) If the
national government attempted to act beyond its enumerated
powers, the resolution stated, its actions were “unauthoritative,
void, and of no force.”297 The resolution then focused on free
expression: “[N]o power over the . . . freedom of speech, or freedom
of the press, being delegated to the United States by the
Constitution, nor prohibited by it to the states, all lawful powers
respecting the same did of right remain, and were reserved to the
states, or to the people.”298 By this reasoning, the Sedition Act was
invalid, though the states themselves retained “the right of
judging how far the licentiousness of speech, and of the press,
may be abridged without lessening their useful freedom.”299
Because of the First Amendment’s ambiguity, both the
Federalists and the Republicans were able to articulate
reasonable though opposed arguments. Interestingly, they agreed

292 The Sedition Act of 1798, 1 Stat. 596-97 (1798).

293 E.g., 8 ANNALS OF CONG., 2139 (1798) (statement of Virginia
Representative John Nicholas).
294 Id. at 2153 (statement of New York Representative Edward Livingston).
295 Kentucky Resolutions (Nov. 10, 1798; Nov. 14, 1799), reprinted in 5

FOUNDERS, supra note 257, at 131.

296 Id.; see SHARP, supra note 30, at 196-97 (discussing Jefferson’s role in

writing Kentucky Resolutions).

297 5 FOUNDERS, supra note 257, at 132.
298 Id.
299 Id.
46 BROOKLYN LAW REVIEW [Vol. 81:1

on one point: the criminal punishment of seditious libel is

consistent with republican-democratic government. They disagreed
on whether both the states and the national government (the
Federalist position) or only the states (the Republican position)
could impose the punishment. Politically, the result of the
Sedition Act crisis was that the Republicans swept the elections of
1800. Jefferson became President, and the Republicans gained
control of both houses of Congress.300 With regard to free speech
and a free press, the crisis eventually spurred Republican
politicians and writers to develop more sophisticated and
protective theories of free expression.301 Nevertheless, when courts
articulated the legal doctrine of free expression in the nineteenth
century, these expansive theories were largely ignored or
forgotten. Thus, just as courts recognized that other individual
rights and liberties, including property rights, were subject to
government regulation and infringement under republican
democracy, courts similarly conceived of rights to free speech and
a free press. No rights were sacrosanct. To be sure, state
constitutions, as well as the federal Constitution, expressly
protected citizens’ rights to free expression, but government
nonetheless could limit such rights if in pursuit of the common
good. As it was often phrased, individuals enjoyed rights to speech
and press but were still responsible for abuses of those
freedoms.302 Liberty was not equivalent to license.303
Consequently, the lower courts developed free-expression
doctrine consistent with these republican-democratic principles.
More specifically, courts used a “bad tendency” test to delineate
the scope of free expression: the government could not impose
prior restraints on expression, but it could impose criminal
penalties for speech or writing that had bad tendencies or likely
harmful consequences.304 Such harmful speech and writing

300 ELKINS & MCKITRICK, supra note 202, at 746-50; SHARP, supra note 30,
at 226-75.
301 E.g., JAMES MADISON, Report on the Alien and Sedition Acts (Jan. 7, 1800),

reprinted in MADISON, WRITINGS, supra note 34, at 608; GEORGE HAY, AN ESSAY ON
THE LIBERTY OF THE PRESS (1799), reprinted in TWO ESSAYS ON THE LIBERTY OF THE
PRESS (1970); see FREE EXPRESSION, supra note 21, at 89-98 (discussing expanding
notions of free expression).
302 The Pennsylvania Constitution stated that “every citizen may freely speak,

write, and print on any subject, being responsible for the abuse of that liberty.” PA. CONST.
of 1838, art. IX, § 7, reprinted in 2 POORE, supra note 18, at 1557, 1564. For similar
constitutional provisions, see ARK. CONST. of 1836, art. II, § 7, reprinted in 1 POORE, supra
note 18, at 101-02; DEL. CONST. of 1831, art. I, § 5, reprinted in 1 POORE, supra note 18, at 289,
289; and ILL. CONST. of 1848, art. II, § 4, reprinted in 1 POORE, supra note 18, at 449, 471.
303 E.g., State v. Van Wye, 37 S.W. 938, 939 (Mo. 1896).
304 ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH 25 (1920); see also MICHAEL

KENT CURTIS, FREE SPEECH: “THE PEOPLE’S DARLING PRIVILEGE” 10-12 (2000) (discussing
bad tendency test). The bad tendency test first emerged as a truth-conditional standard. As
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 47

contravened the common good. Many courts added that the

criminal defendant, to be convicted, must also have intended
harmful consequences. Even so, under the doctrine of constructive
intent, the courts typically reasoned that a defendant was
presumed to have intended the natural and probable consequences
of his or her statements. If a defendant’s expression was found to
have bad tendencies, then the court would infer the defendant’s
criminal intent.305 In sum, through at least the late nineteenth
century, courts suggested neither that free expression deserved
more constitutional protection than other rights or liberties nor
that free expression protected wealth or other property rights.

CONCLUSION

Historical evidence does not support the Roberts Court

conservatives or scholars such as Richard Epstein who claim to
follow originalist methods while simultaneously insisting that
the Constitution creates a laissez-faire political-economic
system. The Framers and their contemporaries were not market
fundamentalists. They envisioned a political-economic system
with a balance between the public and private spheres. They
wanted virtuous citizens and government officials to pursue the
common good in the public sphere, but they had learned that a
government relying on virtue alone would fail. Many citizens
would pursue their own passions and interests rather than
virtue and reason. To be a self-interested striver in the private
economic sphere, the Framers believed, was legitimate and
beneficial. Yet they feared that the unrestrained pursuit of self-
interest in the public sphere would scuttle the American
experiment in republican government and market economics. If
the Framers were correct on this point, then the United States
today is in great peril. Partly because of the Roberts Court’s
decisions invalidating campaign finance restrictions, enormous
quantities of private-sphere wealth now infect the public
sphere.306 In the 2012 election cycle alone, $7 billion was spent.307
The Framers might have aimed for a balance between property

articulated by Judge James Kent in People v. Croswell, 3 Johns. Cas. 337, 356-58 (N.Y. Sup.
Ct. 1804), truth was a defense to a charge of criminal libel, but only if the defendant
published for good motives and justifiable ends. If the published material was either false, or
true but with bad tendencies, then it was criminally punishable.
305 E.g., Castle v. Houston, 19 Kan. 417, 433-34 (1877); Perkins v. Mitchell, 31

Barb. 461, 464-65 (N.Y. Gen. Term. 1860); Commonwealth v. Morris, 3 Va. (1 Va. Cas.)
176, 179-80 (1811).
306 See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434 (2014); Am. Tradition P’ship,

Inc. v. Bullock, 132 S. Ct. 2490 (2012); Ariz. Free Enter. Club’s Freedom Club PAC v.
Bennett, 131 S. Ct. 2806 (2011); Citizens United v. FEC, 558 U.S. 310 (2010).
307 McCutcheon, 134 S. Ct. at 1457.
48 BROOKLYN LAW REVIEW [Vol. 81:1

rights and government power, but the system has become

dramatically skewed and is completely out of balance. As many
commentators have observed, the rich persistently use their
wealth to influence elections and to shape the government and
its policies.308
The Framers deserve great praise for their insights into
public-private relationships. When they arrived in Philadelphia for
the Constitutional Convention, they had observed republican
government up close, at the state level, for barely more than a
decade. Based on that brief experience, they had largely shed their
utopian ideals, which had animated the state constitutions, and
had become pragmatic realists. Their insights into human nature
and citizens’ attitudes toward property and economic wealth, on
the one side, and government, on the other, were shrewd, original,
and sagacious. Their conceptualization of separate public and
private spheres, in relative balance, was a remarkable and long-
lasting achievement. The Framers successfully created a political-
economic system that allows individuals to enjoy a degree of liberty
in a private or economic realm while simultaneously cooperating in
the maintenance of a political community that respects, to some
extent, both liberty and equality.
Yet the Framers were products of their political and
historical times. True, they realistically assessed human
motivations and astutely analyzed the events of the 1780s. But
the Framers also made mistakes—some terrible ones—at least
partly because of their context. One cannot reasonably assess the
Framers’ deep racism and acceptance of slavery without
acknowledging their positions as white, male, relatively wealthy
political leaders in late eighteenth-century America. The point
here, though, is that the Framers themselves must bear some of
the blame for the current situation in the United States. The
Framers, mostly men of wealth, feared that the poor could form
self-interested factions that would control the government to their
own selfish advantage.309 The poor, for instance, might unjustly
seek debt relief—as in Shays’ Rebellion—but the wealthy, of
course, would have little reason to do so. Most of the Framers
generally did not view the wealthy as a likely source of factionalism
and government corruption. Instead, they believed that a virtuous

308 See generally LARRY M. BARTELS, UNEQUAL DEMOCRACY (2008); JACOB S.

HACKER & PAUL PIERSON, WINNER-TAKE-ALL POLITICS (2010); THOMAS PIKETTY,

CAPITAL IN THE TWENTY-FIRST CENTURY (Arthur Goldhammer trans., 2014); JOSEPH E.
STIGLITZ, THE PRICE OF INEQUALITY (2013); DARA Z. STROLOVITCH, AFFIRMATIVE
ADVOCACY: RACE, CLASS, AND GENDER IN INTEREST GROUP POLITICS (2007).
309 BEEMAN, supra note 18, at 66-67 (discussing the Framers’ wealth).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 49

elite would emerge largely from among the wealthiest men.310 In

other words, the Framers conceptualized separate public and
private spheres and sought to construct a system that would
protect both spheres. But when they mused about corruption,
they primarily envisioned the poor—because of their private-
sphere poverty—banding together to seize control of government
and then using the government to threaten the property rights of
the wealthy. That is, the poor would use political or public-sphere
power to illegitimately intrude into the private sphere.
To be sure, the Framers designed a Constitution that, they
believed, could overcome self-interest in general, not just the self-
interest of the poor. Yet they apparently did not devote sufficient
attention to the types of corruption that could originate with the
wealthy. Significantly, in this regard, Gouverneur Morris was one
Framer who, along with Benjamin Franklin, warned that the rich
could be as self-interested as the poor. At the Convention, Morris
stated: “The Rich will strive to establish their dominion & enslave
the rest [of the people]. They always did. They always will.”311
Morris, however, did not think highly of most people, rich and
poor alike. He worried that the poor—“the ignorant and the
dependent”—would likely sell their votes.312 In fact, Morris
proposed that the Senate be composed of wealthy aristocrats
chosen for life, even though he believed the rich would use their
power to manipulate the people.313 “We should remember that the
people never act from reason alone,” he explained. “The rich will
take advantage of . . . [the people’s] passions and make these the
instruments for oppressing them.”314
But Morris and Franklin were outliers in their emphases
on economic, class-based interests, in general, and the powerful
self-interest of the wealthy, more specifically. Madison and most
of the other Framers did not acknowledge that the wealthy might
be just as likely as the poor—maybe even more likely—to seek
control of the government for their own advantages. The Framers
fretted about the poor banding together into democratic
majorities, but they did not fully grasp how private-sphere
power—wealth itself—might be used to control government.
Overall, then, the Framers failed to construct or insert sufficient

310 Id. at 114 (noting that Pierce Butler assumed the wealthy would wield

political power); NEDELSKY, supra note 18, at 142-44 (discussing Madison’s views about
the wealthy).
311 1 FARRAND, supra note 18, at 512 (July 2, 1787); 2 id. at 249 (Aug. 10,

1787) (Franklin).
312 2 id. at 202-03 (Aug. 7, 1787).
313 1 id. at 512-13 (July 2, 1787).
314 Id. at 514. Morris was “an avowed elitist . . . [who] believed only people like

himself should be entrusted with political power.” BEEMAN, supra note 18, at 48.
50 BROOKLYN LAW REVIEW [Vol. 81:1

protections to shield government power from private-sphere

overreaching—regardless of the source.315
Looking at this from a different angle, the American
Revolution and the Constitution, as several historians have
emphasized, unleashed social and cultural forces that would
change America in ways beyond the anticipation of the founding
generation.316 The protection of liberty in the public and private
spheres, the protection of property in the private sphere, and the
guarantee of republican-democratic government with at least a
degree of equality in the public sphere combined to create a
dynamic society. In particular, the Founders created a country
that would unleash an enormous amount of commercial energy, a
private-sphere power that would seemingly continue to grow from
decade to decade and from century to century.317 Thus, the
Framers aimed for a balance between the private and public
spheres and between property rights and government power, but
they unwittingly triggered forces that would ineluctably change
the nation.318 They might have aimed for balance, but they failed
to create systemic structures that would maintain it in the long
run. Ultimately, from this perspective, the Framers must bear
some blame for the current imbalance in and endangerment of
our constitutional system.
Apparently, then, the Framers deserve praise and blame,
and sometimes both simultaneously. However one might best
describe the political-economic system created by the Framers, it
has evolved into a type of “democratic capitalism.” In any such
system, there are potential tensions or conflicts between the
public and private spheres.319 In a free-market economy,
individuals, corporations, and other profit-making enterprises
necessarily seek profit. Without profit, an enterprise dies.320 To
remain competitive, an enterprise must constantly seek to

315 See NEDELSKY, supra note 18, at 65, 142-49, 201-02 (blaming Madison and the

Framers for aiming for balance but not adequately protecting republican principles of
government).
316 EMPIRE, supra note 118, at 1-4; RADICALISM, supra note 18, at 3-8;

Appleby, supra note 83.

317 JAMES WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE

NINETEENTH-CENTURY UNITED STATES 21 (1956) (emphasizing the nineteenth century

“release of [creative and economic] energy”).
318 See NEDELSKY, supra note 18, at 1-14 (explaining that the Constitution

ultimately gives too much protection to property despite Madison’s desire to achieve a balance).
319 SAMUEL BOWLES & HERBERT GINTIS, DEMOCRACY & CAPITALISM 3-7 (1986);

TIMOTHY K. KUHNER, CAPITALISM V. DEMOCRACY 24 (2014); PRINDLE, supra note 202, at x, 2.

320 Milton Friedman, The Social Responsibility of Business Is to Increase its

Profits, N.Y. TIMES, Sept. 13, 1970; see ROBERT L. KERR, THE CORPORATE FREE-SPEECH
MOVEMENT 10 (2008) (emphasizing that “the profit imperative . . . is . . . a fundamental
obligation of the corporate charter”); TAMARA PIETY, BRANDISHING THE FIRST
AMENDMENT 148-52 (2012) (emphasizing corporate profit motive).
2015] IS THE CONSTITUTION LAISSEZ-FAIRE? 51

introduce change, to develop new products, to expand markets, to

open new markets, and ultimately, to increase profits.321
Capitalism is driven by an “expansionary logic”—an inherent
desire to grow and to multiply profits.322 The very notion of
government appears to contravene that expansionary logic;
democratic law making, it would appear, imposes limits that can
constrain economic development and profit.323 In other words, the
goals of actors in the respective spheres do not necessarily
harmonize. According to an apocryphal quote from Louis Brandeis:
“We can have a democratic society or we can have the
concentration of great wealth in the hands of a few. We cannot
have both.”324 Possibly, then, in the United States, these tensions
between democracy and capitalism have created a weakness, an
instability, in the political-economic system. Yet the tensions might
engender strength. The tense and uncertain balance between the
public and private spheres might have created a flexibility that has
enabled the American system to last more than two centuries
despite enormous social and cultural changes.325

321 The economist Joseph Schumpeter referred to this economic drive for

innovation and profit as “[c]reative [d]estruction,” partly because the new (such as a
new product) often threatens the old (such as a less desirable old product). JOSEPH A.
SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 82-83 (1943).
322 FRAN TONKISS, CONTEMPORARY ECONOMIC SOCIOLOGY 60 (2006).
323 Id. at 60-61; see SCHUMPETER, supra note 321, at 131-42 (arguing that

aspects of democratic culture undermine capitalism); John Medearis, Schumpeter, the

New Deal, and Democracy, 91 AM. POL. SCI. REV. 819, 820-26 (1997) (arguing that
Schumpeter viewed democracy as transformative and as undermining capitalism).
324 Peter Scott Campbell, Democracy v. Concentrated Wealth: In Search of a

Louis D. Brandeis Quote, 16 GREEN BAG 2d 251 (2013).

325 A Weberian perspective suggests that systemic tensions can create

strength rather than weakness. Stephen M. Feldman, An Interpretation of Max Weber’s

Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law, 16 L.
& SOC. INQUIRY 205, 216, 242-48 (1991).