Economic Liberty and the Arizona Constitution: A Survey of Forgotten History
Paul Avelar & Keith Diggs. Justice Brennan’s exhortation—now forty years old—for lawyers and judges to rediscover protections for individual rights in state constitutions was a timely reminder of the importance of state constitutions in our system of federalism. Justice Brennan issued this call at a time when he believed the U.S. Supreme Court was retreating from the protection of individual rights under the U.S. Constitution. It is doubtful that Justice Brennan meant to include economic liberty—the right to earn a living free from oppressive government regulation—in his “new federalism.” But economic liberty is a nearly textbook example of an individual right that the U.S. Supreme Court had once vigorously protected but had retreated from by the late 1970s. The pattern of meaningful protection for economic liberty fading into nonprotection was…