I'm on the record as being a huge fan of George Will, but even he gets an issue remarkably wrong sometimes. A good example of that came this week. In a column published Thursday Will described how one small business owner in Pinal County, Arizona has been tormented by entirely irrational and increasingly onerous local regulations. Near the end of his column, Will offers this thought:
The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.
Although I loath idiotic economic regulations as much as the next one, I cannot agree with the notion that the due process and equal protection clauses in the 14th Amendment protect a generalized right to economic liberty, for reasons that have been set forth by lots and lots of originalist thinkers. Will doesn't offer a counter to this conventional originalist wisdom (understandably, considering the space limitations), but unless he is basing his position on evidence and reasoning that are much more powerful than what we've seen yet on the matter I doubt he would have convinced many had he done so.
By the way, I still maintain that, in the long run, it is impossible to have cases like Lochner without also having cases like Roe, and vise versa. Both free-market libertarian originalists and living constitutionalists ignore that to ultimate peril of their views.
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