The Goldwater Institute today filed a brief in the Arizona Supreme Court urging the justices to extend full constitutional protection to the right to earn a living—perhaps the most vital and neglected of our constitutional freedoms. But although America’s founders regarded this right as absolutely critical (they called it “the pursuit of happiness”), and although most Americans today view it as central to our society (they call it “the American Dream”), courts have tended to ignore or downplay the importance of economic liberty, and for decades, have barely regarded it as a right at all. Our brief urges the state’s high court to rectify that mistake and protect economic freedom just like the rights to free speech or freedom of religion.
Economic freedom—the right to start a business, or get a job, or buy and sell things to support yourself and your family—was regarded as a basic, legally protected right almost two centuries before the U.S. Constitution was even written. As early as the 1600s, English judges ruled that British subjects had the right to pursue what they called a “common occupation” without unreasonable government interference. In those days, interference usually took the form of “monopolies”—that is, government rules that allowed only a particular person or group to engage in a trade. In a series of decisions in the 17th century, English courts ruled that monopolies violated the Magna Carta.
That was the background from which the American founding fathers worked. When the British empire began restricting their economic freedom—passing laws like the Hat Act, which prohibited American colonists from making hats out of furs they trapped on their own land, in order to protect the monopoly of London hat-makers—the founding fathers objected that this violated their basic right to economic freedom. A government “where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens [the] … free choice of their occupations” is “not a just government,” wrote James Madison.
But despite this—and despite the fact that state and federal courts protected economic freedom throughout the nineteenth century—things changed when the U.S. Supreme Court issued a series of rulings in the 1930s declaring that economic liberty would no longer be given the same kind of protection that other constitutional rights receive. Instead, legislators and regulators could interfere with economic liberty virtually at will—in ways that would never be allowed with respect to other kinds of liberty.
That brings us to engineering consultant Greg Mills. Greg is an experienced engineer who runs a consulting firm that helps design electronic circuitry. But the Arizona Board of Technical Registration declared that Greg falls within the state’s licensing law for engineers—a law that was actually designed with architectural engineering in mind—and therefore that he cannot practice his trade without government permission. Getting a license would be an expensive and time-consuming task, and would make no sense, because his business isn’t the kind of thing the licensing law was written for. As a result, Greg’s been involved for the better part of a decade in a lawsuit, represented by our friends at the Institute for Justice, to vindicate his right to earn a living without this kind of government interference.
Now, the Arizona Supreme Court has agreed to hear his appeal, and to address the question of whether the right to earn a living is a “fundamental” right under the state constitution.
The answer to that is yes. As we explain in our brief (joined by our friends at the National Federation of Independent Business and the Cato Institute), by whatever constitutional theory you choose to employ—Originalism, “living constitutionalism,” or anything else—the right to economic liberty is a basic right of all people, and deserves the full protection of the Arizona Constitution.
In the 1960s, Supreme Court Justice William Douglas called economic liberty “the most precious liberty that man possesses.” Yet today, courts regularly shrug at their obligation to uphold this basic constitutional right. As we explain in our brief, that’s wrong—wrong as a matter of economics, morality, and law. It’s past time that courts stood up for this critical constitutional right.
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
