July 6, 2017
Economic freedom is an essential part of the American Dream, and one of the constitutional rights that the Goldwater Institute works hard to protect. But occupational licensing laws often block entrepreneurs from starting businesses or getting jobs unless they first get permission from the government. While some form of license might make sense for doctors or pilots, these laws are frequently used to block economic competition instead of protecting consumers against harm. Missouri businesswomen Ndioba Niang and Tameka Stigers filed this lawsuit to challenge the constitutionality of a state licensing requirement for hair-braiding. They argued that this requirement didn’t protect public safety. But here’s where things got tricky: instead of deciding the case on the basis of the evidence, the trial judge held that the law was constitutional because it was possible that the law might have been considered constitutional. In other words, the actual evidence didn’t matter—what mattered was whether the judge could imagine a world in which the law was constitutional.
That way of deciding cases is unjust, irrational, and a violation of the due process clause of our Constitution. Even aside from the question of whether this licensing law is constitutional or wise, this case focuses on the deeper question of whether people who want to argue that such laws are unconstitutional should have a fair day in court—or whether the judge should actively try to find ways to rule against them. We’re asking the U.S. Supreme Court to take the case to address the question of whether judges can disregard the actual evidence in such cases—or whether they should rely on the reality of the case.
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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