The classical limits to police power and the economic foundations of the Slaughterhouse dissents

The essay examines the infuence of classical economics on an important episode in American 19th-century jurisprudence on business regulation, the Slaughterhouse Casesof 1873. It is well known that the dissents penned by Supreme Court Justices Field and Bradley lay down the fundamental doctrines of the later Lochnerera of so-called laissez faire constitutionalism. The essay argues that these dissents were inspired by Adam Smith’s system of natural liberty and, in particular, by his views about the regulation of negative externalities and the undesirability of government-granted monopolies. The Smithian infuence emerges even more clearly when the briefs presented by counsel for the plaintifs John A. Campbell are considered. Those briefs contained most of the issues raised by the dissenting Justices; hence, it is claimed that Lochner’s intellectual roots may be traced back to Campbell and, from him, to Smith.