[/tippy] These “fundamental principles” were viewed as protections of certain basic rights, such as the right of “enjoyment of life and liberty . [/tippy] The Lochner Court explicitly recognized the right of the state to pass legitimate health and safety regulations, which were equally binding upon all those involved in that trade. [/tippy] As in Lochner, the Court did not stop at this asserted interest, however, and, as in Yick Wo and Truax, it found that the law was actually an attempt to discriminate against Japanese immigrants, stating: To all intents and purposes and in effect the provision in the 1943 and 1945 amendments are the same, the thin veil used to conceal a purpose being too transparent. Rep. 165 (K.B. After he retired from Parliament, he wrote a series of books, the Institutes of the Common Law of England, which were to be the training books for generations of lawyers, including Thomas Jefferson, John Adams, and John Marshall. [tippy title=”64″ header=”off”]Bowen, supra note 1, at 513-14. there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed . The common law had always permitted government to regulate activities that had public effects–that is, nuisances, or other such effects upon third persons who were protected because they had not chosen to take on such burdens. What Lochner had said was that it was the duty of the Court to look behind the facial justification of the law at its substantive effect. Another theme, that the Due Process Clause was interpreted as including a substantive component long before the nineteenth century, has been thoroughly explored by Bernard Siegan, particularly in his recent book. 1902); Anderson v. State, 96 N.W. . That question each individual settles for himself.”); State v. Hipp, 38 Ohio St. 199, 222 (1882) (“one who conducted such business in a lawful manner was entitled, under the law as it then existed, to the same protection which was accorded to dealers in other articles of personal property . [/tippy], At the Constitutional Convention, the Framers debated a motion to establish “a [Congressional] power ‘to grant charters of incorporation . Rep. 1127, 1128 (K.B. Coke was not the only judge who argued that monopolies violated the common law. [tippy title=”59″ header=”off”]See also Weaver of Newbery’s Case, 72 Eng. 1775). I wish to thank Harvard law student Alexander Volokh and Chapman University School of Law Professor John C. Eastman for their help. 219, 220 (Minn. 1892); State v. Dubarry, 11 So. Ct. Note also that the Constitution specifically preserved “[a]ll debts contracted and engagements entered into, before the adoption of this Constitution.” U.S. Const. It was the wealthy who benefited from monopoly practices. Accord Player v. Vere, 83 Eng. 1885). [/tippy] But in truth, Madison and Jefferson were quite suspicious of the idea. The Founding generation’s belief in the sanctity of debt and contract is reflected in Ware v. Hylton, in which the Court held that the state of Virginia had no right to cancel debts owed to British creditors before the Revolution. 1896); State v. Hunt, 40 S.E. Pr. 379, 405 (“The government should not be able to take away the right to control one’s livelihood without adequate safeguards.”); Wayne McCormack, Property and Liberty – Institutional Competence and the Functions of Rights, 51 Wash. & Lee L. Rev. Tomlinson v. Humana, Inc., 495 So. Can such a thing be rightfully done? 932, 933 (Ga. 1900) (“It cannot be seriously denied that the ordinance tended to defeat competition and encourage monopoly. 1714) (Private contracts in restraint of trade, “where no particular consideration is to balance the restraint of trade … are void, in what form soever the contract appears.”); Broad v. Jollyfe, 79 Eng. [/tippy] In other words, government could regulate trade impartially, but not in order to prevent the free exercise of a lawful calling. 1726). The states were Massachusetts, id. “Every man should be protected in his lawful acts,” he wrote. When the Court finally gave in to New Deal pressures in the famous “Switch in Time That Saved Nine,” and held that courts should defer almost entirely to legislative economic regulations, it was in fact reversing the old rule that the common law “is always jealous of its own importance; and requires every statute which invades its authority to be carefully watched and strictly construed.” [tippy title=”229″ header=”off”]Lessee of Brewer v. Blougher, 39 U.S. (14 Pet.) 1855). [/tippy] In United States v. Carolene Products Co., most famous for its fourth footnote, the Court reversed this completely, holding: Even in the absence of [evidentiary] aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. [tippy title=”230″ header=”off”]304 U.S. 144, 152 (1938). 375, 384 (1986) [hereinafter Miller, Pretense]. . (Brewer, J., dissenting); see also George Reisman, Capitalism: A Treatise on Economics 375-440 (1996) (detailing two different meanings of the term “monopoly”). In this case, the Supreme Court struck down a federal minimum wage law which set wage standards for employees of State governments. [/tippy] for instance, held that “[s]tatutes which impose restrictions upon trade or common occupations, or which levy an excise or tax upon them, must be construed strictly.” [tippy title=”116″ header=”off”]Id. Such scandalously bad law prevailed, however, culminating in the Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896), in which the Court, by applying “judicial restraint,” refused to block southern majorities from obliterating the Reconstruction commitment to civil rights. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 65 (Edwin Cannan ed., 1937) (1776). 454, 455 (Ill. 1895) (“Liberty includes the right to acquire property, and that means and includes the right to make and enforce contracts. Cf. 217 (1878); Stuart v. Palmer, 74 N.Y. 183 (1878); In re Cheesebrough, 78 N.Y. 232 (1879); Lowry v. Rainwater, 70 Mo. . 285, 286 (W.Va. 1889); Chaddock v. Day, 42 N.W. 1602). Moreover, I do so while acknowledging that the expansion of economic regulation did not begin suddenly in 1937, but gradually over the course of the preceding half-century, with its Populist and Progressive movements. . absolutely burgeoned in this period,” and while some of these regulations were “solely designed to produce revenue,” others were discriminatory defensive measures meant to exclude outside merchants from the local market. [tippy title=”169″ header=”off”]Friedman, supra note 133, at 397 (emphasis deleted). 2d 744, 746 (Ala. It is harder for the Congress, for example, to overrule the President’s veto than for the Congress to pass a law with the President’s consent. 1702) (“[A]n indictment, which sets forth that there is an antient [sic] custom in Winchester, that no person should exercise any trade till free of the Guild of Merchants there … was quashed without difficulty.”). Over the course of the Progressive Era, however, the concept of “public effects” was broadened more and more in order to accommodate increasing regulation of eventually almost every private activity. [tippy title=”246″ header=”off”]See Roscoe Pound, An Introduction to The Philosophy of Law 41-42 (Yale Univ. This no Body has any Right to but himself. v. Rumpff, 45 Ill. 90, 99 (Ill. 1867). The one exists when exclusive privileges are granted. 1756) (striking down licensing requirement for butchers); Rex v. Combs, 90 Eng. [/tippy] Of course, since all actions have some attenuated public effects, Progressivism found an opportunity to abandon nearly all restraints on governmental power, and to replace limited government with, in Dewey’s words, “that form of social organization, extending to all the areas and ways of living, in which the powers of individuals shall not be merely released from mechanical external constraint but shall be fed, sustained and directed.” [tippy title=”248″ header=”off”]Id. Pa. 1823) (No. adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare.”); State v. Moore, 18 S.E. [/tippy] When George III granted the East India Company the right not only to ship tea, but to sell it in America, workers who were now legally closed out of a livelihood reacted with the famous Boston Tea Party. [tippy title=”81″ header=”off”]Morison, supra note 80, at 203-04. Co., 15 P. 380 (1887); Quintini v. Mayor of Bay St. Louis, 1 So. See also Foster v. Essex Bank, 16 Mass. If Holmes’ views were generally accepted, Mencken wrote, “there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.” Id. The Court determined long ago that although “[i]t is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, . Another ironic note is to be found in Bush v. Seabury, 8 Johns. V. Id. 1687). . A constitution is exactly where a particular political and economic theory is embodied. Classical philosophers such as Aristotle and Augustine theorized that political society is (in Augustine’s words) “an assemblage associated by a common acknowledgement of right, and by a community of interests.” See Augustine, The City of God 19:23-24, reprinted in The Essential Augustine 211 (Vernon J. Bourke ed., 2d ed. 1880) (striking down law prohibiting the hiring of Chinese); Lin Sing v. Washburn, 20 Cal. 219, 220 (Minn. 1892) (declaring license requirement void because of the “arbitrary and unequal scale of charges as is provided for . . Using “sic” after all of these unique spellings would quickly become tedious. [So] the question here is not what government must give, but rather what it may not take away. [tippy title=”281″ header=”off”]Id. [/tippy] The Alabama Supreme Court held in 1838 “that a citizen has the right to aspire to office, or to pursue any lawful avocation,” and no citizen should be “legally deprived of this right, as a punishment for an offence committed, without a trial by jury.” [tippy title=”125″ header=”off”]In re Dorsey, 7 Port. The myth that Lochner announced a “new” and “unprecedented” rule has long deserved debunking. 263, 269 (1997). See also Brown v. Maryland, 25 U.S. 419, 444 (1827); United States v. Martin, 94 U.S. 400, 403-04 (1876); Shields v. Ohio, 95 U.S. 319, 324-25 (1877); Boyd v. United States, 116 U.S. 616, 635 (1886); Minnesota v. Barber, 136 U.S. 313, 320 (1890); Budd v. People, 143 U.S. 517, 531-32 (1892) and cases cited therein; Lawton v. Steele, 152 U.S. 133, 137 (1894); Holden v. Hardy, 169 U.S. 366, 389-90 (1898); Otis v. Parker, 187 U.S. 606, 608 (1903). [/tippy] but it is remarkable how, after 1937, the Courts’ treatment of the right to earn an honest living has been confused. at 1057. . [/tippy] And the Supreme Court of Illinois held, in the 1855 case of Wade v. Halligan, [tippy title=”128″ header=”off”]16 Ill. 507 (Ill. See also Commodity Trend Serv., Inc. v. CFTC, 1999 U.S. Dist. No man is obliged to follow his occupation; but unless he takes it he must starve, except he have other means of living.” [tippy title=”150″ header=”off”]Ex parte Garland, 71 U.S. (4 Wall.) 393 (1856). THE RIGHT TO EARN A LIVING ACT S tates can take a major step toward restoring the freedom of enterprise that is every American’s birthright by enacting model legislation called the Right to Earn a Living Act. 10, 773) (“[W]hy should a person innocently ignorant of the qualities of a dangerous thing unconsciously brought upon his premises in the pursuit of a lawful calling, not only be compelled to sustain the damage suffered himself, but, also, that suffered by his neighbor from an accident resulting therefrom without his fault. Coates v. Coopers Co. of Newcastle-upon-Tyne, 101 Eng. . . Part VI discusses academic criticism of these cases, and the triumph of legal positivism in 1937. Kuhn v. Common Council, 38 N.W. In almost gushing terms, Mason described Brandeis as “an avowed partisan of the common man; his special concern is for those economically and financially dependent; he prefers human welfare to property rights.” Id. 7 (1872); Town of Cantril v. Sainer, 12 N.W. Sav. 1768). 99, 101 (N.Y. Sup. at 1059. Ct. 1982); Howell v. Benson, 432 N.Y.S.2d 835 (N.Y. Sup. [/tippy] the Court held “that commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause.” [tippy title=”307″ header=”off”]Id. [/tippy] But Coke was also the leading opponent of royal monopolies. [tippy title=”24″ header=”off”]Id. & Housing Auth. See, e.g., Clark v. Le Cren, 109 Eng. Indeed, Rexford Tugwell, one of the principal architects of the New Deal, said as much some 30 years after Carolene Products was decided: “To the extent that these [New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” . [/tippy], Miller held that Coke’s Case of Monopolies was inapposite. [/tippy] In 1943, the state began issuing these licenses only to citizens, which meant that Japanese immigrants like Mr. Takahashi, who by federal law could not acquire U.S. citizenship, were no longer permitted to work as fishermen. [tippy title=”259″ header=”off”]Id. It was written from whole cloth to pave the way for the redistributive and regulatory programs of the New Deal. of Regents, 347 U.S. 442, 472 (1954) (Douglas, J., dissenting). 491 (1861), Justice Field, later a dissenter in the Slaughter-House Cases, held that a law requiring licenses for operating mines could not require the licensing of mines operated on privately held land. at 87-89. The proposed law recognizes that the right of individuals to pursue It does many men little good to stay alive and free and propertied, if they cannot work. have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged.” [tippy title=”147″ header=”off”]Id. . “What [Jefferson] wanted essentially was the increased incentive resulting from monopoly grants without the ill effects of monopoly.” Id. . . . As economic regulation became more prevalent from the turn of the century to the present, the courts were increasingly called upon to resolve this tension. Rep. 646 (K.B. Although the right to pursue a lawful occupation has been repeatedly cited in American case law, it has been mentioned more often in the breach than in the observance. at 749-53. . . Rep. 1047, 1047-48 (K.B. No well-considered case can be found sustaining a penalty on an ordinary contract, where public interest was not involved.”) (citation omitted); Ex parte Theisen, 11 So. of Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). W. Gaunt & Sons, Inc. 1986) (1545). Under the prevailing interpretation, the court struck down government intervention in the economy because such laws ran contrary to the Supreme Court Justices’ personal economic views, which they then wrongfully enforced from the bench. . Under each and both, alien Japanese are denied a right to a license to catch fish on the high seas for profit . Looking through form to substance, it clearly and unmistakably infringes private rights . . 4, 1801), in Thomas Jefferson: Writings 492, 494 (Merrill D. Peterson ed., 1984). 1989); Benigni v. City of Hemet, 868 F.2d 307, 312 (9th Cir. But see Home Bldg. at 340-41. [/tippy] Of course the board is run by a handful of taxi operators with no interest in increasing their competition. 1766). J. Ross Browne, Report of the Debates of the Convention of California, on the Formation of the State Constitution, in September And October, 1849, at 124-25 (1850). .” [tippy title=”47″ header=”off”]Darcy v. Allen, 77 Eng. & Mary L. Rev. Rep. 165 (K.B. 350, 352 (Mo. “I had thought,” Black said, “that we had laid that formula, as a means for striking down state legislation, to rest once and for all.” Id. Thus, I refer to this shift as occurring in 1937 even though Carolene Products was announced on April 25, 1938. 845, 847 (Mich. 1893) (“any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. Those who believe a woman’s place is in the home have much to gain by making it harder for her to get a business license, harder to get a job, harder for her to pursue her dreams. Rep. 819, 821 (K.B. If you “act” in the role of a “legal person”, you are crossing the line into the lower world of the legally dead, surrendering your unalienable rights as a living soul. knowingly buy measly pigs, and they sell the said sausages and puddings, unfit for human bodies, in Norwich market.” [tippy title=”33″ header=”off”]Leet Roll of 24 Edward I. § 1981 (1994)). In other words, freedom is the rule, and government action is the exception. [tippy title=”228″ header=”off”]See also Randy E. Barnett, Necessary and Proper, in The Supreme Court and American Constitutionalism 157, 186-94 (Bradford P. Wilson & Ken Masugi eds., 1998) (explaining the “presumption of liberty”); James Madison, Charters, reprinted in James Madison: Writings 502, 502 (Jack N. Rakove ed., 1999) (“In Europe, charters of liberty have been granted by power. Ann. 1938). 397, 431-32 (1999) (arguing that Lochner was an example of “misuse of the Fourteenth Amendment to invalidate humane state legislation”); Cornell W. Clayton, Toward a Theory of the Washington Constitution, 37 Gonz. Fourth Circuit reaffirms that the right to earn a living is protected by the Constitution. 1990); Chiropractic Coop. See, e.g., Paul D. Carrington, Restoring Vitality to State and Local Politics by Correcting the Excessive Independence of the Supreme Court, 50 Ala. L. Rev. On the surface, it seems to make sense. According to the claim of the state, it disables a certain class of persons of full age, of sound mind, and in all respects legally capable of entering into a contract, from making a certain class of contracts. . Globe, 42d Cong., 2d Sess. [/tippy] Similarly, in Wynehamer v. People, the New York Court of Appeals struck down an 1856 temperance law, noting that although liquor might have pernicious effects, it was still property, and selling it was therefore a legitimate occupation protected under the Constitution. [tippy title=”131″ header=”off”]13 N.Y. 378, 385-86 (N.Y. 1856). Ferguson, 163 U.S. 537 (1896), in which the Court, by applying “judicial restraint,” refused to block southern majorities from obliterating the Reconstruction commitment to civil rights. 85 (1993). 1133, 1157-59 (1931). at 1233-34 (quoting Galahad v. Weinshienk, 555 F. Supp. [/tippy], New York courts have recognized this right, [tippy title=”324″ header=”off”]See, e.g., Ribotsky v. Lupkin, 452 N.Y.S.2d 806 (N.Y. Sup. [/tippy] Holmes wrote, “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” [tippy title=”234″ header=”off”]Id. Ohio 1896) (“employes [sic] . . As one commentator has written, “Slaughter- House would be a difficult case today, except that the hard questions would be hidden by the assumption, built into ‘rational basis scrutiny,’ that the states generally do not act for forbidden purposes.” [tippy title=”331″ header=”off”]Harrison, supra note 136, at 1468 (emphasis added). The right to earn a living was a fundamental right in American jurisprudence before the coming of the progressive change in legal theory. See also In re Parrott, 1 F. 481, 520 (D. Cal. 1981) (citing Mass. Rep. 854, 857 (K.B. It is as inviolable as the right of property, for property is the offspring of labor. and trans., Wm. 1891) (“The ordinance is not general in its operation. Rep. at 1262-63. . In 1377, the court struck down a royal monopoly which had been granted to a man named John Peachie, on the sale of wine in London. [tippy title=”13″ header=”off”]Edward Coke, The Third Part of the Institutes of the Laws of England *181 (William S. Hein Co. 1986) (1797) [hereinafter Coke, The Third Part of the Institutes]; 4 Sir William Holdsworth, A History of English Law 344 (3d ed. . Ct. 1827); Coates v. City of New York, 7 Cow. A monopoly of fact any one can break, and there is no necessity for legislative interference. Currently, the only existing record for you is a legal fiction which the state has attached to you; this means that you fall under their rules. However, ‘common law’ partner rights do not exist. Rep. 20, 22 (K.B. Such statutes are to be construed strictly, and in favor of the right.”); Sherlock v. Stuart, 55 N.W. They are at liberty, indeed, are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. . at 122. . [/tippy], Federal determination to protect the right to earn a living was soon crippled, however, with the Slaughter-House Cases, which questioned the constitutionality of a Louisiana law granting a twenty-five year monopoly to a state butchery company. [tippy title=”152″ header=”off”]83 U.S. (16 Wall.)