Positive Liberty

I’m sad to say that Professor Bernard Siegan, one of the most important figures in economic liberty law, author of Economic Liberties And The Constitution and other important books, died on Monday. He was 82.

Prof. Siegan’s importance to the development of libertarianism and the law is evident from these tributes from two of my PLF colleagues.

Damien Schiff writes,

I was fortunate enough to be taught constitutional law by Professor Siegan, and to assist in the research of his second edition of Economic Liberties. He was a gentleman beyond compare, blessed with an acute mind but also a remarkable humility. To him students were equals. He taught without a textbook. In its place he gave us the cases and the cases alone. The liberal bent of the constitutional law casebooks he avoided, but, at the same time, he did not keep the student from pondering things for himself. Lochner was presented simply, without hyperbole or diatribe. He changed my thinking about the Constitution radically.

Working with him on his last book, I learned beyond doubt that, for him, the name in print, the reputation in the academy, the accolades of peers, meant nothing unless his principles were the right principles, unless he was fighting, in however genteel a manner, for the liberty and dignity of each human person as recognized in our Constitution. Although he was convinced of the correctness of his view, he was neither fanatical nor intolerant nor imperious; these traits were inimical to his character. If you told him that Lochner was bologna, he would give you that endearing and disarming smile, shrug his shoulders, and then proceed to chat with you, delicately, amicably, but probingly, as a colleague and servant of the Law, until either you had changed your mind or, if not, you had left wanting to believe as he did. And why not? It was a vision without parallel in the law schools today. It was a theory both radical and reactionary: radical because so out of step with current trends, reactionary because so consistent with our political origins.

His vocation was as a professor and teacher of the young. He remarked to me once that he was very happy that his nomination to the Ninth Circuit had been sunk (by Ted Kennedy), because had he ascended the bench he would never have known the joy of a life devoted to the study and instruction of law. I never saw him angry or flustered or perturbed, even in the face of intellectual hostility. He had a serenity of mind that comes only with conviction. He was a lover of truth.

And Larry Salzman writes,

Damien and I had the great pleasure of working with him on research projects and learning constitutional law from him at the University of San Diego…. He will be widely remembered for his courage as a defender of economic liberties when that defense was most lonely. He also provided a distinctive concept of originalism. His 1980 edition of Economic Liberties and the Constitution is a fountainhead of revisionist thinking on both subjects, the latter of which was in part responsible for the Senate’s refusal to confirm his appointment by President Reagan to the Ninth Circuit. David Bernstein has remarked that “between the demise of Lochner in West Coast Hotel v. Parrish in 1937 and publication of Bernard Siegan’s Economic Liberties and the Constitution in 1980 . . . only a single article that expressed even mild support for Lochner was published.” It is perhaps unnecessary among PLF attorneys to note how many people have since been inspired to expand on Professor Siegan’s theme and how many published articles now exist on the subject of economic liberty. Optimism about that fact kept him vibrantly productive well into his eighties and he completed the last draft of his final book only months before his stroke.

He has been accused by some of having only one idea, which he repeated in 100 articles. If true, that idea is fairly identified by the concluding words of Economic Liberties, which bear repeating as often as possible: “The rewards of liberty are vast and unpredictable.” It was clear to me that this theme was not merely a political observation but, for him, a personal truth that he was eager to share with the world: he had enormous gratitude for the abundant personal, commercial, and academic success he had found in life and it was his joy to try to persuade as many people as would listen that such a life was possible to everyone, everywhere, if only they were left free to pursue the people and values they most cherished, to exercise their ambition, and to accumulate the rewards of their virtue. I regard this as the key to an aspect of his character noted even by some severe critics of his constitutional ideas: once you met him, it was impossible not to like him. He knew that a life of liberty made him a very happy man, and so he had the capacity to press the most radical defense of freedom with a mild-mannered sincerity and enthusiasm that went a long way toward disarming his opponents.

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