September 13, 2019
The right to earn a living is a fundamental human right—one that English courts recognized a century and a half before the American Revolution, and that our founding fathers sought to preserve in our state and federal constitutions. Unfortunately, that right is often undermined by licensing laws and other restrictions that force people to get government permission before they’re allowed to practice a trade or profession. And many of these laws are designed, not to protect consumers, but to prevent economic competition for the benefit of a few insiders, who use licensing laws to restrict supply and drive up their prices.
One example of this kind of licensing abuse is Georgia’s law that forbids people from working as “lactation consultants” without a license. Lactation consultants are people who help new mothers feed their babies. They don’t practice medicine or cure illnesses—but the state of Georgia requires people to pass an intensive examination and get a government license before they can talk to new moms about breastfeeding. On the other hand, the law only applies if a person receives money for this service—you don’t need a government license to advise mothers about breastfeeding if you do it for free.
And a Georgia trial judge said this was constitutional because “Georgia law does not recognize a constitutional right to work in a chosen profession,” given that “such a right is subordinate to the state’s right to regulate.”
We filed a friend of the court brief asking the Georgia Supreme Court to reverse that ruling. Not only is the right to work in a profession of one’s choice a profoundly important constitutional right—one Georgia courts have recognized for centuries—but it’s also presumptively unreasonable for the government to require a license when a person does something for money, but not when the person does the exact same thing for free. If an activity—lactation consulting or anything else—is so dangerous that the government must forbid people from doing it without state permission, then it makes no sense to impose no regulations on the same activity when conducted without charge. The fact that Georgia’s lactation consultant licensing law includes this exception is strong evidence that the licensing requirement is itself arbitrary, irrational, and unconstitutional.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates to promote economic liberty, private property rights, free speech, and other crucial values in states across the country. Timothy is the author of eight books, including most… Read more...
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