It’s Time for the Arizona Supreme Court to Protect the Right to Earn A Living

The Goldwater Institute today filed a brief urging the Arizona Supreme Court to enforce the fundamental right of all Arizonans to earn a living without unreasonable government interference. Although that right is one of the most important elements of the American Dream—and is referred in the state constitution more than most other rights—courts have often failed to respect it, allowing the government to restrict economic freedom in ways that would never be tolerated if such restrictions applied to the right to vote, or the freedom of speech. Our brief urges the court stop picking and choosing of which constitutional freedoms get meaningful protection, and to respect the right to pursue happiness.

The case involves Greg Mills, an electronics engineer who has been forbidden from running his consulting business without getting a government engineering license. That’s absurd, because the kind of “engineering” that the law had in mind was large structural projects—bridges and highways—not electronics engineering. But state bureaucrats have taken advantage of the vague law to demand that Greg get a government license simply to consult with electronics device makers. Worse still, the law would allow Greg to do his job without a license if he worked for a large manufacturing firm. But because he works on his own, that’s not allowed.

Yet when Greg went to court to challenge this absurd restriction—represented by our friends at the Institute for Justice—judges ruled that his right to run a business is merely an “economic” right, and therefore not entitled to the same protections that other constitutional rights get. Using a theory known as “rational basis review” the court said that if the government wants to restrict a person’s right to earn a living, it can do virtually anything it wants to.

The problem is, that “rational basis” theory was invented by federal courts to interpret the federal Constitution. It has nothing to do with the Arizona Constitution. And the state’s fundamental law provides far stronger protections for individual rights than the federal Constitution does. It’s senseless to apply federal legal theories to the state Constitution—especially when those theories were invented in the 1930s, more than two decades after Arizona’s Constitution was written.

In our brief, we explain why there’s no good logical or legal reason to follow that path. On the contrary, Arizona’s Constitution is far more robust in its protection for the right to pursue happiness—including by devoting one’s skills to providing for oneself and one’s family. Economic liberty is a fundamental constitutional right in Arizona, and it deserves the highest legal security.

You can read our brief here.