Balancing liberty of contract with police power : a Hobbesian approach.

Abstract

Modern liberal society exists by negotiating a fine balance between the liberty of the citizen and the authority of the state. Yet, as the years put distance between our founding principles and their execution, we have become forgetful of the symbiosis that unites individual and common goods. Particularly in American jurisprudence, we see a growing antagonism between personal liberties and the state's ability to act in the interest of the whole (known as its "police power"). The first and paradigmatic contest between these principles can be traced to the Lochner v. New York and its later repudiation in West Coast Hotel v. Parrish. Lochner and its ilk tend to overemphasize the interest of liberty at the expense of the public good. West Coast Hotel, on the other hand, so vehemently rejects the most radical components of Lochner that government regulation on behalf of the public good effectually supersedes even moderate liberty interests. Both approaches recur throughout the Court's history, and yet fail to achieve the necessary balance of liberty and the public good because they consider the matter as a dichotomy. My dissertation will explore our constitution's roots in social contract theory, looking particularly to the thought of Thomas Hobbes for a third option that is consistent with the language and tradition of the Constitution, and is also more effectually viable than existing alternatives. Within a framework of social contract, individual liberty finds its fullest expression within the political community, which in turn exists to promote individual flourishing. When one is favored at the expense of the other, both must suffer. I begin with a review of the existing jurisprudence on the matter, highlighting the role and influence of Lochner. I then proceed to identify elements of Hobbesian social contract in the Constitution, discussing how to interpret these provisions in light of their philosophic roots. This section includes a brief explanation of why Hobbes is preferred here to the more traditional Lockean reading. Finally, I conclude with an examination of more recent cases before the Court, applying the method I have set forth.