This Note describes the legal achievement that underlaid that political success. It argues that price controls, whatever their merits as policy, represent an unusually direct challenge to neoliberalism’s central economic and political premises. Then, it shows how the Court’s price control jurisprudence offers insights into what’s been lost in our late neoliberal era. Against the depoliticized market and inert individualism of neoliberalism, the Court, in constitutional cases adjudicating the legality of price controls, envisioned an active democratic sovereign, capable of extensive, even extreme, power over the conditions of its own existence. Indeed, as this Note describes, in the century preceding neoliberalism’s rise, price controls were consistently conceived of by the Court as the limit case for collective power over putatively private property and, by extension, the broader economy. But, while price controls remain constitutional as a policy, the conception of sovereignty they helped to create has been largely forgotten, if not wholly forgone. Thus, this Note concludes, the legal history of price controls exemplifies neoliberalism’s most impressive achievement: to make the form of politics it opposes not illegal, but irrational.
“Price and Sovereignty.” Harvard Law Review, vol. 135 (2021), available at https://harvardlawreview.org/2021/12/price-and-sovereignty/.