In the past quarter century, federal courts have taken vital steps toward better protecting the constitutional right to economic liberty. That’s one of the most important of all individual rights, and it’s guaranteed by the Fourteenth Amendment to the U.S. Constitution, which, among other things, pledges that no person will be deprived of liberty without “due process of law.” But progress has not been as fast as freedom’s defenders would like to see, and a new book published by our friends at the Cato Institute asks whether there are better paths—and specifically, whether we should look to state courts to better secure the right to earn a living.
Entitled Beyond the Fourteenth Amendment: Protecting the Right to Earn a Living, the book includes chapters by prominent freedom scholars such as Anthony Sanders, Ethan Blevins, and Stephen Slivinski. It also includes my own chapter, entitled “Defending Economic Liberty in State Courts: A Practitioner’s Perspective,” which offers some suggestions for how lawyers can defend and expand the protections for economic liberty contained in state constitutions. As we’re fond of saying at Goldwater, America has 51 constitutions, not just one, and these often contain broader protections for individual rights than the federal constitution does. Unfortunately, lots of lawyers are unfamiliar with their own state constitutions—and there’s surprisingly little scholarship on their origin and meaning. That’s what I aim to rectify in my article. Here’s an excerpt:
One reason this enterprise holds so much promise is that states typically have remarkably rich legal traditions and experiences. State constitutions reflect challenges that were faced, and reforms that were adopted, in the generations that followed the federal constitution. State constitutional gift clauses, for example, which prohibit giving or lending money or credit to private enterprises, all postdate the U.S. Constitution and reflect the disastrous experiences resulting from nineteenth-century government subsidies to railroad and canal companies. The same is true of the special law clauses of state constitutions, which bar legislatures from granting particular privileges to specific groups, and the eminent domain provisions of several state constitutions, which are more specific than the federal Fifth Amendment in prohibiting private takings.
It should go without saying that not only may state courts interpret their state constitutions without relying on the federal courts’ interpretation of the federal constitution (as long as they do not interpret them as less protective of individual rights), but it’s positively irrational for them to do otherwise, in many cases….
State courts have had to address “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” They have declared, for example, that occupational licensing laws prohibiting people from practicing photography without a license are irrational under their state constitutions. They have declared protectionist laws regulating food sales illegitimately discriminatory under their state constitutions. And they have repeatedly refused to follow the federal “anything goes” version of the rational basis test, insisting that while the state has broad discretion to regulate economic matters, that discretion must actually be reasonable, rather than being predicated on wholly imaginary rationalizations. State constitutional litigation thus offers many opportunities, but demands consideration of unique factors….
You can read the rest here and get a copy of the full book here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
