An important factor in these movements is the fundamentally anarcho-syndicalist tenor of the union movement, which demands an ever greater share of national income. Public-sector unions like the American Federation of State, County and Municipal Employees have been prominent in the “occupy” movement. Wisconsin AFSCME proudly sent pizzas “in solidarity” with the Wall Street occupiers.

Rutgers University labor economist Leo Troy calls public-sector unionism “the new socialism.” The old socialism was based on state ownership of the means of production. The new socialism involves the transfer of an ever greater share of the economy to the public sector. Government at all levels took about 5% of GDP a century ago and 13% on the eve of the Great Depression. The New Deal increased the proportion to one-third by 1960. We are in the forty percent range now, and the full nationalization of health care will put us over half.

Unions have been a primary force in the expansion of state power. Even the reputedly “conservative” American Federation of Labor called for “the abolition of the wage system.” A.F.L. President Samuel Gompers put organized labor’s goal as simply “more” — exactly what Johnny Rocco, the Al Capone-like figure portrayed by Edward G. Robinson in the 1939 film “Key Largo,” explained as his ultimate end. The New Deal’s expansion of state power was based principally on private-sector unionism that began with the “occupy Flint” sit-down strikes of 1936.

Congress had empowered unions by the National Labor Relations (Wagner) Act to balance the power of corporations. But they had become a law unto themselves. Roscoe Pound, the Harvard Law School Dean who had done much to promote labor reform in the progressive era, noted in 1958 that unions were free to commit torts against persons and property, interfere with the use of transportation, break contracts, deprive people of the means of livelihood, and misuse trust funds, “things no one else can do with impunity. The labor leader and labor union now stand where the king and government . . . stood at common law.” Rather than a countervailing force to limit corporate power, unions had themselves gained “a despotic centralized control.” The private-sector union quest for “more” finally killed the auto and steel industries and private-sector unionism itself.

Public-sector unionism had suffered a major setback with the Boston police strike of 1919, which exposed the anarchical consequences of what Massachusetts Governor Calvin Coolidge called a “strike against the public safety” and which President Woodrow Wilson called “an intolerable crime against civilization.” Government employees were expressly excluded under the Wagner Act. As President Franklin D. Roosevelt explained, “the very nature and purposes of government” made collective bargaining impossible, because a public employer is “the whole people, who speak by means of laws”—that is to say, the government is sovereign. A union that could compel it to bargain must perforce become the new sovereign.

The ethos of organized labor could often be predatory and nihilistic. It reminds one of the famous “Melian dialogue” in Thucydides’ history of the Peloponnesian War. The Athenians tell the citizens of Melos that they must join their alliance against the Spartans. When the Melians reply that they have a just right to remain neutral, the Athenian ambassadors reply that “we both alike know that into the discussion of human affairs the question of justice only enters where the pressure of necessity is equal, and that the powerful exact what they can, and the weak grant what they must.” When the Melians insist on their rights, the Athenians annihilate the city, kill all the men, and enslave the women and children.

This was the spirit of Representative William Clay’s advice to the air traffic controllers in 1980. He urged them to:

“…completely revise your political thinking. It should start with the premise that you have no permanent friends, no permanent enemies, just permanent interests. It must be selfish and pragmatic. You must learn the rules of the game and learn them well. Rule Number 1 says that you don’t put the interest of any other group ahead of your own. What’s good for the federal employees must be interpreted as being good for the nation. Rule Number 2 says that you take what you can, give up only what you must. Rule Number 3 says that you take it from whomever you can, whenever you can, however you can. If you are not prepared to play by the rules then you have not reached the age of political maturity and perhaps you deserve everything that’s happening to you.”

The United States dodged a bullet when Congress refused to enact Representative Clay’s National Public Employee Relations Act—a “Wagner Act for public employees”—in the mid-1970s. It was helped by a close Supreme Court decision that suggested that such an act was beyond Congress’ heretofore limitless power to regulate interstate commerce. Reagan’s breaking of the air traffic controllers strike also helped to ensure that the United States did not go as far as Italy, Greece, or even Great Britain–before Margaret Thatcher–in turning over its government to public-employee unions.

The ethos of “more” for the public sector has driven most of the West to the point where the private sector cannot produce enough to stave off bankruptcy. Occupy Wall Street drivel notwithstanding, the outright confiscation of all of the income of the “1%” would not even eliminate this year’s federal deficit.

Although earlier progressive innovations have confused the process, the Constitution is quite clear that the President is chosen by electors, appointed by each state “in such manner as the legislature thereof may direct.” Like the bicameral Congress, the presidency was infused with federalism—the states as states would have a role to play in the choice of the chief executive.

Indeed, the framers expected that, after George Washington, few men would have sufficient stature to command an electoral college majority. Thus the President would be chosen by the House of Representatives, by a special method in which each state delegation would cast one vote. But in time, the political parties produced a system in which the popular vote majority almost always was the electoral vote majority.

More important, the founders wanted to make sure that the President could not claim to embody the people. The presidential election would not be a plebiscite, of the kind that produced Caesar, Napoleon, or other demagogic dictators.

In short, the Electoral College would keep the President a constitutional president—limited and balanced by the other levels and branches of the constitutional system.

This system has frustrated big-government liberals who envisioned the President as the head of a European-style centralized bureaucratic state. Proposals to abolish the Electoral College perennially arose. Today, they arise from Democrats who still believe that George W. Bush stole the 2000 election.

But a legitimate constitutional amendment to abolish the Electoral College would be all but impossible. The less populous states derive more electoral power from the fact that electors are apportioned on the basis of total congressional representation—the number of representatives (derived from population) plus the number of senators (derived from state equality). At the extremes, California has over twelve percent of the nation’s population, but only about ten percent of the electoral vote; Wyoming has 0.18% of the population but 0.56% of the electoral vote. Overall, about eighteen states suffer slightly reduced electoral college power, while about thirty-two gain electoral college voting strength.

So the current scheme is the “National Popular Vote Initiative.” It aims to have a number of states with an electoral college majority agree to cast their electoral votes to whomever wins a national popular vote majority. To date, eight states and the District of Columbia, having 132 electoral votes—about half the required total—have signed on. California and Illinois are the largest.

The principal problem is that this effort to circumvent the Constitution’s electoral college provision, and to evade the Constitution’s amendment provision, is itself unconstitutional.

As Pepperdine University Professor Derek Muller points out in the Election Law Journal, the National Popular Vote Initiative is an interstate compact. Article I, section 10 of the Constitution says that “No state shall, without the consent of Congress… enter into any agreement or compact with another state.”

NPVI advocates deny that their gambit is an interstate compact requiring congressional consent. They rely on Supreme Court rulings that hold that the compacts clause “cannot be read literally.” They claim that the compact clause was only intended to prevent the states from usurping powers that belong to the United States.

But, as Muller points out, the smaller, non-compacting states lose political power by this compact, and certainly have an interest in stopping it. The NPVI says that “Because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.” The likelihood of congressional consent before the 2012 election differs insignificantly from zero.

The Supreme Court has never considered an interstate compact that concerned voting before, and the NPVI could send us into another electoral crisis like that of 2000—like many other progressive initiatives, exacerbating the problem it proposed to solve. Does anyone really believe that California or New York would abide by its pledge if a Republican won the national popular vote? Would not they suddenly develop constitutional scruples and renege? The NPVI would be unenforceable.

The National Popular Vote movement dislikes the fact that a president can achieve an electoral vote majority with a popular vote minority. This happened in 1824, 1876, 1888, and 2000. (It is worth remarking that many Democrats expected Al Gore to carry Florida and win an electoral college majority with a popular minority—and that the early calls of a Gore victory probably depressed Bush’s popular vote.) One can make a fair case along this line. But that does not alter the fact that the Constitution provides for it. And this Constitution still represents the consent of the sovereign people of the United States until amended, as George Washington put it, by some “explicit and authentic act.”

The Constitution was established so that a stronger Union would be able to pay its debts. The Confederation government had already defaulted on its Revolutionary War obligations. Thus the new government assured its creditors in the new Constitution, which provided that “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be valid against the United States under this Constitution, as under the Confederation.” The Federalists and their successors paid off the entire national debt by the 1830s.

After the Civil War, the American people settled permanently the possibility of repudiating the national debt. Section four of the Fourteenth Amendment simply says, “The validity of the public debt of the United States, authorized by law… shall not be questioned.” Thus the Republicans foreclosed the possibility that, should the Democratic party return to power, it would repudiate the war debt—or pay the Confederate debt.

While other provisions of the Fourteenth Amendment provoked intense debate, section four did not. “I need say nothing of the fourth section,” said Representative Thaddeus Stevens, “for none dare object to it who is not himself a rebel.”

Until recently, nobody imagined that this provision gave the President the power to borrow money—to add to the public debt–without Congress’ permission. The Constitution is explicit in giving Congress the power “to borrow money on the credit of the United States,” as well as stating that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” And note that the Fourteenth Amendment guarantees “the public debt… authorized by law.”

(This novel argument appears to be the brainchild of Law Professor Garrett Epps. Professor Epps is such a devotee of New Deal liberalism that he writes “My children and I recite a family formula–something like, ‘If I forget thee, O Works Progress Administration, may my right hand lose its cunning’–but I begin to despair that my children ever will see Jerusalem.”)

The Civil War cost roughly four billion dollars, and the Republicans displayed an admirable fiscal integrity in paying for it. They raised taxes—mostly via the tariff, but also in a host of excise taxes and the first-ever income tax. They also inflated the currency through the country’s first issue of paper money, a half-billion dollars of “greenbacks.” But mostly they borrowed to pay for the war—about two billion dollars overall. This required them to maintain America’s credit in world markets, and the Union government promised to pay the national debt in gold, not depreciated paper money.

Once the war was over, most of the taxes were repealed as the debt was paid off. Even the income tax proved temporary, being repealed in 1872. “An income tax is a war tax,” Senator Charles Sumner said. “It ought not to be made a peace tax. The medicine of the Constitution should not become its daily bread.”

Even more impressive was their handling of the greenback issue. They produced an inflation of about 80% in the war years, which compared favorably to the 4000% Confederate inflation. After falling to over two and half greenback dollars per gold dollar during the war, the greenback approached parity by 1870 and was legally as good as gold by 1879.

Moreover, private creditors could guard against future inflation by writing “gold clauses” into private contracts, which promised to pay debts payable “in United States gold coin of the present standard of value.” The courts sustained these inflation-hedge contracts until the New Deal Congress outlawed them in 1934.

The Republican party was the “sound money” party. They defended the gold standard in the pivotal election of 1896 against the silver inflationist platform of William Jennings Bryan’s Populist-Democrats. As Calvin Coolidge put it in 1922, “Inflation is repudiation.”

In the depths of the Great Depression, Congress gave President Franklin D. Roosevelt the power to inflate the currency by various means. F.D.R. chose to take the U.S. off the gold standard. He confiscated all privately-held gold and paid for it at twenty-one dollars an ounce, and then raised the price of gold to thirty-five dollars an ounce. This “refinancing” saved the Treasury some three billion dollars, and the devaluation cost individual creditors some four hundred billions—that would be almost six and a half trillion dollars today. It was the greatest transfer of wealth since the uncompensated emancipation of four billion dollars (in 1865) of slaves (about 56 trillion dollars today).

American citizens could no longer redeem their dollars in gold. Their value now depended entirely on the “faith and credit” of their government. But F.D.R. maintained the gold dollar for foreign trade. The convertibility of the dollar at $35 per ounce became the lynchpin of the post-World War II international trading system.

The inflationary pressure of federal programs, especially the Vietnam War, led to a severe gold drain in the late 1960s. The last vestige of precious metals left our coins, and President Nixon ended international gold convertibility in 1971. Since then, the dollar has “floated,” rising and falling in value compared to other currencies, depending on the fiscal and monetary policies of their governments.

The Chinese have complained that the U.S. is defaulting on its debt de facto via inflationary dollar manipulation. That this is a case of the wok calling the kettle black does not detract from the basic truth of the charge. As Calvin Coolidge said, “Inflation is repudiation.”

To continue borrowing to the point of outright default would be the final step in our decline from the financial morals of the founders. One of the greatest accomplishments of Ronald Reagan’s presidency was ending the great inflation of the 1970s. Republicans today ought curb borrowing to prevent default, and then take steps to repudiate repudiation-by-inflation.

By 1910, Congress had already taken some steps toward the establishment of a police power—outlawing, for example, the interstate shipment of lottery tickets and of impure food and drugs. The U.S. had recently ratified a multinational treaty to stamp out the international trafficking in prostitutes. The act’s proponents emphasized that it was an attack on the big business of “commercialized vice.” The press and U.S. officials, particularly U.S. Attorney Edwin Sims in Chicago, claimed that a vast “white slave trust” was operating in the country, when in fact there was little coerced prostitution at all.

The bill raised constitutional objections in the House, often from states-rights advocates. But prostitution was so universally reviled that most overcame their constitutional scruples. Rep. William Cox of Indiana had doubts as to the bill’s constitutionality, but said that he “would unhesitatingly resolve that doubt in favor of its constitutionality on account of the enormity of the crime sought to be stopped and the evil intended to be remedied…. Who can be hurt by its provisions? None but the guilty.” The bill’s sponsor, Illinois Republican James R. Mann, claimed that the white-slave traffic, “while not so extensive, is much more horrible than any black-slave traffic ever was.” New York Representative William Sulzer denounced the “quibbling in regard to the constitutionality of the provisions of this bill. In this frightful matter I shall not allow technicalities to cloud my sense of immediate duty.” In an ominous sign of Congress’ progressive abdication of its constitutional duty, he said, “The courts must take the responsibility for its constitutionality.”

The most important question about the statute was whether its applicability to “any other immoral purpose” included more than large-scale commercialized or coercive prostitution. Almost immediately, federal prosecutors went after consenting fornicators and adulterers, absent any coercion or commercial exchange. The act also abetted blackmailers. But Congress did not amend the act to curb these abuses. The Supreme Court unanimously upheld the act against constitutional challenge in 1913. What would later be called a constitutional “right to travel” the Court dismissed as confusing “a right exercised in morality to sustain a right to be exercised in immorality.” Justice Joseph McKenna admitted that “our dual form of government has its perplexities,” but concluded that “surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls.” In acting against these evils, Congress “may adopt not only means necessary but convenient.”

This case, Hoke v. United States did not involve coercive “white slavery,” but it did at least involve commercial prostitution. The Court subsequently gave its approval to prosecutions of a non-commercial nature. Shortly after Woodrow Wilson took office, Drew Caminetti, the son of his immigration commissioner, was arrested for traveling across state lines and engaging in sexual relations with a woman not his wife. The relationship was completely voluntary and not commercial. The Justice Department could not discontinue the case, begun under the previous, Republican administration, lest it give an impression of political favoritism. When Caminetti appealed his conviction, the Supreme Court upheld this application of the Mann Act. Justice William Day declared for the majority that it was compelled to abide by the plain words of the act, that any “immoral purpose” was enough. Justice McKenna for the dissenters claimed that the title, “White Slave Act,” and legislative history showed that Congress intended to reach only “commercialized vice, immoralities having a mercenary purpose… vice as a business.” “Everybody knows that there is a difference between the occasional immoralities of men and women and that systematized and mercenary immorality epitomized in the statute’s graphic phrase, ‘white slave traffic.’” Nevertheless, Mann wrote to Justice Day to congratulate him on his proper interpretation of the act. There would be nearly five thousand Mann Act convictions over the next decade, a majority of which were non-commercial.

The Mann Act was the real beginning of the Bureau of Investigation (later, the F.B.I.), which then used Prohibition to extend its power. The bureau secured five thousand Mann Act convictions in the 1920s. Bureau chief J. Edgar Hoover personally led mass raids, and acquired information that compromised public officials. The act (like the income tax laws) was used to get gangsters who could not otherwise be convicted, and often targeted blacks who traveled with white women (most notably black heavyweight champion Jack Johnson), political dissidents, and other unpopular minorities.

The Mann Act showed how far the federal police power had been extended. Federal power “to regulate commerce among the states” had been extended to moral regulation, and might therefore be extended to any other kind of regulation. This went beyond the attempt to prohibit interstate shipment of things, as Attorney General Philander Knox put it, “noxious or dangerous in themselves,” which had heretofore been widely regarded as the limit of the police-power extension of the commerce power. In the Mann Act, there were neither things nor commercial activity involved. Chief Justice John Marshall provided a famous definition of what “commerce among the states” meant in 1824. Commerce, he said, “undoubtedly, is traffic, but it is something more: it is intercourse.” Only the most extravagant extension of this definition of commerce could reach cases like that of Caminetti, of consensual if illicit trysts. After the New Deal swept away the last vestiges of constitutional limitations on Congress’ powers, later legislators would not even bother to give pretexts to their attempts to regulate gun possession, domestic violence and, now, health care.

The whole project of modern liberalism has been to distribute “rights” in ways that liberals deem socially valuable. This rejects the founders’ view that God and/or Nature endowed individuals with rights, which governments are instituted to protect. Twentieth century progressives and liberals believed instead the governments distribute rights according to elites’ sense of social good.

The founders had a holistic, “seamless garment” view of rights. The made no distinction between property rights and free speech rights. Rather, land, capital, money or other tangible economic rights were simply one facet of “property,” which included anything, tangible or intangible, to which one could claim ownership. This is the meaning of the Latin root of the word, proprius, a possessive pronoun meaning “mine.” When John Locke used the term “property,” he meant this—everything to which one had a right. When he spoke of land, capital, chattels, or money, he used the term “estates.”

James Madison echoed this in a 1792 essay. “It embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…. A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

The progressives developed a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. The progressives were able to get the Supreme Court to abandon the protection of economic rights, while preserving judicial review for non-economic rights. It did so in a very famous footnote to a decision in which it upheld a congressional act prohibiting the interstate shipment of “filled milk” (an interesting story in itself—another place where the dairy lobby has left its mark on constitutional law).

The case was U.S. v. Carolene Products, and the Court noted, “The existence of facts supporting the legislative judgment is to be presumed,” in cases involving “ordinary commercial transactions.” In economic regulation, the Court would assume that legislation “rests upon some rational basis within the knowledge and experience of the legislators.” That is to say, the Court would accept any but the most wildly irrational basis for economic regulation. But “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth,” Justice Stone wrote. “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” The note also suggested that the Court would scrutinize “statutes directed at particular religious, or national, or racial minorities,” and also be alert to “prejudice against discrete and insular minorities [which] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

Simply put, some rights, and some groups, were entitled to more constitutional protection than others.

This doctrine became known as the “preferred freedoms” or “double standard” test. The Court has developed it largely by applying the Bill of Rights to the states. It is not surprising that it took the Supreme Court decades to get around to applying the Second Amendment to the states, since the right to bear arms is not a right that liberals cherish.

But, after liberals made free speech a preferred freedom, they began to worry about that right being used by the Right. Thus they invented ingenious arguments to justify college speech codes, the “fairness doctrine” in broadcasting, and, most recently, campaign finance reform. They are trying to find a double standard within the double standard, one that will limit freedom of speech to the groups and interests that liberals prefer. It’s no wonder that Dean Kagan sounds evasive.

Because of the spectacular success of American democracy over the last two centuries, we are apt to forget how discredited democracy was in 1776. The lesson of history was that, in democracies, demagogues would led the passionate and fickle masses would vote themselves the property of the rich minority, and tyranny would result.

The lessons–how Greek city-states destroyed themselves and were conquered by larger despotic empires, how Rome morphed from a republic into such a despotic empire–were well known to the authors of the Declaration of Independence and the Constitution. James Madison observed that the ancient “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Even more familiar was England’s experiment in “commonwealth” democracy during their seventeenth-century Civil War. “Democracy” was a bad word at the time of the American Revolution.

The state governments under the Articles of Confederation repeated many of these ancient maladies. In particular, they engaged in the kind of inflationary debtor-relief polices that demagogues always proffer in times of economic distress. The American Constitution was in large part an effort to save democratic government from the tendency of majorities to vote themselves the property of minorities. Thus James Madison in the tenth Federalist argued that the new Constitution would help prevent a “rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project,” from going nationwide.

The Constitution created a government strong enough to protect us against foreign enemies, to establish a national free-trade area, and to prevent the states from conducting their own foreign or monetary policies. Its structure was meant to prevent majority tyranny. It succeeded fabulously, making the United States the most prosperous and powerful nation in the world by the end of the twentieth century.

After a century, American intellectuals began to think that the Constitution was out of date. They imported European ideas, such as historicism and relativism, which they Americanized into “pragmatism.” They concluded that the Constitution was OK for 1787, but was unable to meet the needs of the new industrial and urban order. They looked to European political systems, especially that of Bismarck’s Prussian welfare state.

As a result, we have gone through several waves of statism–progressivism, the New Deal, the Great Society. They all amount to the same thing–demagogues telling “the people” that they will save them from “the interests.” Democratic majorities have voted themselves all kinds of benefits. Worse still, they have traduced genuine democracy by using unelected judicial and bureaucratic power to override the will of the majority when the majority doesn’t follow the statists’ agenda.

They lost the constitutional principle that government action should be limited genuinely public purposes, and began to legitimize the use of government power by private interest groups. This “interest-group liberalism” was really just the kind of faction-laden politics that Madison warned against. It has produced what Jonathan Rauch calls “demosclerosis,” “an escalating game of beggar-thy-neighbor that damages the economy and chokes the government.”

After the United States won its independence, European autocrats and aristocrats expected the American experiment to fail. The Civil War was their last, best hope, which Abraham Lincoln defeated by his rededication to the principles of the Declaration of Independence. Eventually, Europe embraced American democracy, but not American constitutionalism. Thus, they are further down the road of democratic self-destruction.

Today, if Chinese autocrats are expecting the American experiment to fail, it is because our progressives–Woodrow Wilson, Theodore Roosevelt, FDR, LBJ, Barak Obama–repudiated the principles of the Constitution, the only thing that makes democracy work.

Taken by itself, this statement should be unobjectionable to anyone who believes in such a thing as “rights.” The real problem is that liberal judges have taken it upon themselves to decide which rights are worthy of constitutional protection.

Beginning in the progressive era, the left has articulated a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. Part of their argument for this distinction was that the founders themselves, or their nineteenth-century interpreters, made the same distinction, but put economic or property rights above human rights. Theodore Roosevelt, in his progressive phase, claimed that Abraham Lincoln “showed the proper sense of proportion in his relative estimates of capital and labor, of human rights and property rights,” by giving preference to personal rather than property rights.

But this is a fundamental distortion of the founders’ view. They never made any such distinction.

Rather, land, capital, money or other tangible economic rights were simply one facet of “property,” which included anything, tangible or intangible, to which one could claim ownership. This is the meaning of the Latin root of the word, proprius, a possessive pronoun meaning “mine.” When John Locke used the term “property,” he meant this—everything to which one had a right. When he spoke of land, capital, chattels, or money, he used the term “estates.” James Madison echoed this in a 1792 essay. “It embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…. A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

It’s certainly true that the nineteenth-century Supreme Court, in the era of what is called “laissez-faire jurisprudence,” did protect economic rights, and did not develop a robust doctrine of non-economic rights. But it never separated them or made invidious distinctions between them, believing, as it did, that the right to property was “the guardian of every other right.” But the progressives were able to get the Supreme Court to abandon the protection of economic rights, while preserving judicial review for non-economic rights. It did so in a very famous footnote to a decision in which it upheld a congressional act prohibiting the interstate shipment of “filled milk” (an interesting story in itself—another place where the dairy lobby has left its mark on constitutional law).

The case was U.S. v. Carolene Products, and the Court noted, “The existence of facts supporting the legislative judgment is to be presumed,” in cases involving “ordinary commercial transactions.” In economic regulation, the Court would assume that legislation “rests upon some rational basis within the knowledge and experience of the legislators.” That is to say, the Court would accept any but the most wildly irrational basis for economic regulation. But “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth,” Justice Stone wrote. “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. The note also suggested that the Court would scrutinize “statutes directed at particular religious, or national, or racial minorities,” and also be alert to “prejudice against discrete and insular minorities [which] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

Simply put, some rights, and some groups, were entitled to more constitutional protection than others. This doctrine became known as the “preferred freedoms” or “double standard” test. The Court has developed it largely by applying the Bill of Rights to the states. It has also lately admitted that it was applying the due process clause of the Fourteenth Amendment to the states—what is called “substantive due process,” and which was precisely what the progressives accused the Supreme Court of doing before the New Deal to protect economic rights. The difference with the new substantive due process, though, is that it is used for the right rights and the right groups, by the right judges.

If Justice Wood is nominated, she—or any other nominee—should be able to give an account of her standard of rights determination.