Monopolies and the Constitution: A History of Crony Capitalism by Steven G. Calabresi https://scholarlycommons.law.northwestern.edu/facultyworkingpapers/214/
Despite the post New Deal rational basis mindset, this article has shown that state antimonopoly clauses in particular have
proven to be important for striking down a number of economic regulations that grant special
privileges to some at the expense of others—licensing requirements, taxes designed to benefit
preferred industries, monopolies to do business with the government, and price controls designed
to benefit insiders. Antimonopoly clauses can also be used to strike down laws such as licensing
requirements where the court finds that the laws grant special privilege absent any health and
safety concerns.
The right to compete, and more fundamentally, the right to earn an honest living, is a
basic right embodied in U.S. constitutional law. There is substantial evidence, from the English
and colonial history, from debates on the federal constitution and its ratification, from the history
of the Fourteenth Amendment, and from state constitutional law, to show that this is the case.
However, the longstanding use of rational basis review has meant that the courts have too often
surrendered to a legislative process that is dominated by well-entrenched interest groups seeking
monopoly rents from the state. It means that fundamental economic liberties too often go
unprotected by the courts. In short, the use of rational basis review has meant that “property is at
the mercy of the pillagers.”485 As this article has shown, however, “the constitutional guarantee
of liberty deserves more respect—a lot more.