There’s probably no aspect of individual freedom more important than the right to earn a living. Much as Americans cherish the freedom of speech or the right to vote, it’s economic opportunity that we’re referring to when we use the phrase “the American Dream.” The chance to put one’s skills to use providing for oneself and one’s family is inseparable from our national identity.
How odd, then, that for decades now, federal and state court judges have regarded this aspect of liberty as relatively unimportant, and have often refused to protect it against government interference. Fortunately, a case now pending in the Arizona Supreme Court may very well begin to fix this situation, and restore long-neglected legal protections for hardworking entrepreneurs.
The case involves an electronics engineer named Greg Mills. Although he has decades of experience helping to design electronic circuitry, Arizona bureaucrats announced in 2019 that he would not be allowed to truthfully describe himself as an “engineer” or offer consulting services, unless he got a government engineering license first. That’s a problem, given that the state’s licensing laws were written with structural engineers in mind—to prevent bridges from collapsing, for example—and thus have nothing to do with Mills’s business. Even more absurd is the fact that he would be legally allowed to work for an engineering business without getting government permission—but if he wants to work for himself, he has to ask the bureaucracy “mother, may I?”
Represented by lawyers at the Institute for Justice, Mills sued, arguing that this requirement violates his constitutional right to earn a living as he sees fit—a right protected by the Arizona state constitution.
Mills is right. Economic liberty is one of the most cherished of our constitutional freedoms. In fact, it’s nearly two centuries older than the Constitution.
As far back as the 1600s, English judges held that people have the right to “pursue a common occupation,” and although the government can regulate businesses to protect the public safety, it can’t take away people’s economic freedom simply to protect some companies against competition by others.
Similar concerns led to the American Revolution: when the British Parliament passed laws like the Hat Act, which prohibited colonists from making hats with furs they caught on their own land, or the Iron Act, which made it illegal for colonists to make nails or horseshoes, but required them instead to send iron to London to be made into goods and then shipped back—the American founding fathers protested that this violated the people’s basic right to earn a living for themselves without unreasonable interference. They had a name for that right. They called it “the pursuit of happiness.”
For a century after the Constitution was written, federal and state courts were usually vigilant about defending that freedom against government interference—the same way they still protect free speech or voting rights. But things changed in the 1930s, when the U.S. Supreme Court issued a series of rulings announcing that from now on, economic freedom would be treated like a privilege that the government could override more or less at will. Since then, business owners and employees, or even people selling goods on eBay, have been treated as legal outcasts, whose right pursue happiness is unworthy of judicial respect.
Fortunately, those rulings concerned only the federal constitution, leaving unaddressed the question of whether state constitutions protect economic freedom more than the federal judges are willing to do. In fact, that’s one reason we have state constitutions: they can protect individual liberty more than the federal constitution does.
And the Arizona Supreme Court seems poised to do that. It has asked Mills and the state to both address the question of whether economic freedom should be restored to its rightful place as a “fundamental” constitutional right in Arizona, alongside speech or voting rights. At a hearing on March 10, the justices will hear arguments about reviving this long-neglected right.
More than 70 years ago, U.S. Supreme Court Justice William Douglas said that the right to earn a living is “the most precious liberty that man possesses.” Unfortunately, his colleagues had little interest in providing meaningful protection to that freedom. Now is the time for Arizona’s courts to put things right.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
This op-ed was originally published at the Washington Examiner.
