Justice Scalia, Regulation Magazine, and the Economic Liberties Debate

For the past quarter century, the Cato Institute has published the magazine Regulation, which gives it the honor of carrying on part of the intellectual legacy of Antonin Scalia. Scalia served as editor-in-chief through much of the magazine’s early period, during which it was a project of the American Enterprise Institute. He shared those duties for a time with distinguished economist Murray Weidenbaum, who also went on to great things as chair of President Reagan’s Council of Economic Advisors, and with Anne Brunsdale, who went on to serve as a commissioner on the International Trade Commission. (I was there, too, as an associate editor for much of this period, and I share a few recollections from that era in a piece this morning at The Daily Beast: “My own anecdote about Justice Scalia is that he once hired me for my dream job because I wouldn’t stop arguing with him.”) 

One of the magazine’s high points in its early years had an even more direct Cato connection, the classic debate between Scalia and his former Chicago faculty colleague Richard Epstein on the proper role of the courts in protecting economic liberty. The debate was itself based on an “Economic Liberties and the Constitution” conference sponsored by the Cato Institute, instigated by Roger Pilon and organized by Jim Dorn.  Scalia – by that point, of course, no longer editor and instead a judge on the D.C. Circuit – begins his piece thus:

I recall from the earliest days of my political awareness Dwight Eisenhower’s demonstrably successful slogan that he was “a conservative in economic affairs, but a liberal in human affairs.” I am sure he meant it to connote nothing more profound than that he represented the best of both Republican and Democratic tradition. But still, that seemed to me a peculiar way to put it — contrasting economic affairs with human affairs as though economics is a science developed for the benefit of dogs or trees; something that has nothing to do with human beings, with their welfare, aspirations, or freedoms.

Epstein’s side of that memorable debate is here, and he recalls it in this new appreciation. As a judge, Scalia was somewhat more willing to assert constitutional protection for economic liberties than one might have guessed from his stand in the debate, so perhaps he was influenced to some extent by the give-and-take.   

Cato has published Regulation since 1990 and Peter Van Doren has served as its editor since 1999; the late William Niskanen has more details on its history in this retrospective. You can browse the magazine’s archives here.  During his editorship, which lasted until 1982, Scalia wrote many pieces both signed and unsigned. His contributions to the unsigned front part of the magazine can often be identified once you know to look for his distinctive style (often there was one such piece per issue). As to his signed pieces, my colleagues will have more on those in a forthcoming Cato at Liberty post.