Holmes' dissent in Lochner disparaging economics as a touchstone for liberty started this nation down the procrustean path of jurisprudiential disaster. Soon thereafter, the United States Supreme Court began separating so-called economic liberties from those later "identified" as fundamental. Ludwig Von Mises, Austrian School economist, foresaw that "as soon as the economic freedom which the market economy grants to its members is removed, all political liberties and bills of rights become humbug." This article, relying upon principles of Mises, Rothbard, and other Austrian School economists, argues that separation of economic and fundamental liberties is scientifically impossible and concludes that the Court's artificial distinction between them has resulted in nearly sixty-five years of hopelessly irreconcilable and inept decisions necessarily detrimental to all liberties.
"Procrustean Jurisprudence: An Austrian School Economic Critique of the Separation and Regulation of Liberties in the Twentieth Century United States,"
Northern Illinois University Law Review: Vol. 15:
3, Article 10.
Available at: https://huskiecommons.lib.niu.edu/niulr/vol15/iss3/10
College of Law
Northern Illinois University Law Review