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Unpublished Paper
To Pursue and Obtain Happiness and Safety
ExpressO (2009)
  • Timothy Sandefur
The virtues of free markets are routinely described in economic terminology, and the so-called "laissez-faire" era in constitutional law is said to be a time during which the economic theory of free markets dominated the law. Yet in reality, both the intellectual defense of free markets in Adam Smith’s Wealth of Nations (and its progenitors) as well as the legal theories that prevailed during the "Lochner era," were based not on economics but on moral and political philosophy. Specifically, these ideas were descendants from the classical liberal theory of rights articulated in the Declaration of Independence: specifically, that each person has a right to earn a living for himself and his family without unreasonable government interference. In this lecture, I use the recently decided case of Merrifield v. Lockyer—in which I represented the appellant, Alan Merrifield—to illuminate the moral, rather than economic, defense of economic freedom and of the constitutional protections for that freedom. I describe the moral philosophical background of the right to economic freedom, explain how that theory of rights was abandoned during the Progressive era, and explain some of the consequences of that abandonment. I then explain how decisions like the Merrifield case are helping to revive important constitutional protections for freedom, and to refocus the argument in moral rather than economic terms.
  • free markets,
  • constitutional law,
  • Lochner,
  • Merrifield v. Lockyer,
  • economic freedom
Publication Date
January 9, 2009
Citation Information
Timothy Sandefur. "To Pursue and Obtain Happiness and Safety" ExpressO (2009)
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