GEORGIA LAW REVIEW - StephanKinsella.com

19791 UNITED STA TES CONSTITUTION 1489
anti-Lochner school never applied their theory of constitutional
"neutrality" with regard to social and economic theories to disallow
the use of the "Brandeis brief" as an argument against the existence
of constitutional limitations on legislative action.'48 Their
"neutrality" was
Moreover, their claim that the Constitution is neutral with regard
to "social" and "economic theories" cannot withstand analysis.
Now, whether there are natural rights, or whether their defense by
Locke or other libertarians in the seventeenth and eighteenth centuries
is cogent, is debatable. But that the Constitution, rightly or
wrongly, guarantees such rights is beyond dispute. That being so,
there must also be "social" and "economic rights" in so far as traditional
natural rights guarantee freedom in those areas of human
endeavor that the Holmesian school would label "social" and
6 6
economic."'50 To say, with Holmes, that there are no social or
economic rights guaranteed against governmental abridgment is to
say either: (i) that there are no natural individual rights that gov-
Contrast Ives v. South Buffalo Ry., 201 N.Y. 271, 287, 294-95, 295 (1911):
The . . . report of the Commission . . . is based upon a most voluminous array of
statistical tables, extracts from the works of philosophical writers and the industrial
laws of many countries, all of which are designed to show that our own system of
dealing with industrial accidents is economically, morally and legally unsound. Under
our form of government, however, courts must regard all economic, philosophical and
moral theories, attractive and desirable though they may be, as subordinate to the
primary question whether they can be moulded into statutes without infringing upon
the letter or spirit of our written constitutions.
. . . .
In a government like ours theories of public good or necessity are often so plausible or
sound as to command popular approval, but courts are not permitted to forget that
law is the only chart by which the ship of state is to be guided.
I4O The exposure of Frankfurter as an activist for syndicalism, for example, has already
begun. See Petro, Injunctions and Labor Disputes: 1880-1932 (pt. I), 14 WAKE FOREST L. REV.
341 (1978).
150 One of the difficulties of the Holmes-Brandeis-Stone-Hughes-Frankfurter argument is
its imprecise definitions of "social" and "economic rights," "theories," and "regulations."
Throughout, the argument suggests that "economic" matters implicate only such market-
phenomena as prices (including wage-rates), commercial contracts, and so on. But Holmes
and his fellow-Justices certainly were aware that economic activities of this kind are not ends
in themselves, but merely preconditions for or means to other ends. They are not somehow
separate from other kinds of human action, but integral to it all, as Professors Gewirth and
Pilon have shown earlier in this Symposium. And therefore, Holmes and his confreres must
have understood that there is no category of merely economic activity that political institu-
tions can control without affecting individual liberty in other areas. From this perspective,
the Holmesian argument collapses to a panegyric for totalitarianism-against which, of
course, there are no natural-law defenses by hypothesis.