Brooklyn Law Review


Numerous scholars, as well as the conservative justices on the Roberts Court, are market fundamentalists. They believe that the United States should have minimal government and a largely unregulated economic marketplace. Often, these same scholars and Justices claim to follow an originalist interpretation of the Constitution. This article examines the historical evidence and concludes that the framers and their contemporaries did not intend to create a laissez-faire political-economic system. The framers were pragmatic realists who sought to construct a stable and workable government system that would mediate the conflict between private passions and interests, on the one side, and public goods, on the other. They wanted to protect individual rights, especially rights to property, but they simultaneously wanted to promote the virtuous pursuit of the common good. Thus, the crux of the constitutional scheme was a balance between a private sphere and a public sphere—between economic markets and government actions. In fact, at the time of the constitutional framing, capitalism had not yet fully emerged in America. At most, the framers had a partial vision of a competitive free-market economy. The nation operated with more of a quasi-mercantilist economy until the early nineteenth century. The constitutional protection of slavery underscores that the framers did not intend to create a competitive free market.