May 6, 2019
By Timothy Sandefur
My new article, “Rebuilding the Fourteenth Amendment: The Prospects and the Pitfalls,” has just been published in the NYU Journal of Law & Liberty. I take a look at how far we’ve come in vindicating the constitutional right of economic liberty—and the obstacles that still remain. The biggest of these, I argue, is the pervasive prejudice against economic commerce in the legal community:
Henry David
Thoreau once said that “[t]rade curses everything it handles.” It is at least
true that under the prevailing post-New Deal jurisprudence, trade diminishes
the legal respect accorded to virtually anything. This makes no sense…. “[T]he
market does not transform what were permissible acts into impermissible acts”
or vice versa…. [Yet] the presence of an economic transaction is a convenient
point at which to qualitatively deprive that choice of constitutional
security…. The prevailing prejudice against economic exchange is so strong that
even rights that under the post-New Deal settlement ought to enjoy the highest
degree of protection deteriorate in the presence of trade… I call the jurisprudential habit of treating
rights differently in the presence of a commercial transaction “the Trade
Trigger….”
[T]he presence of
an economic transaction is often used as a trigger, particularly occupational
licensing. In many states, activities that are prohibited without a license are
nevertheless allowed if the person engaging in it receives no compensation.
This alone should fail the rational basis test, since if an activity is
dangerous enough to the public health, safety, and welfare that it must be
prohibited to anyone who lacks a government license, then it must also be so
dangerous that unlicensed persons should be barred from doing it for free. It
is irrational to say, for example, that blow-drying someone’s hair may be
safely done without a license so long as a person does it for no money, but
that blow-drying hair for
money is so dangerous that it must be
banned without government pre-approval.
I also discuss
some of the avenues for future reform: Lawyers will have to resolve what, if
anything, really violates the rational basis test, and what constitutes a
legitimate government interest; will have to apply the rule against vagueness
to civil as well as criminal law; and will have to accept the fact that the
Constitution is a pro-liberty document. And I discuss some of the bad ideas now
circulating in the libertarian/conservative legal community, particularly the
effort by some to abandon the theory of “substantive due process” and to
replace it with a finite list of rights protected by the Privileges or
Immunities Clause:
The bottom line is
this: the attack on Substantive Due Process is fundamentally an argument for
judicial deference—which is to say, for judicial abdication—even if it
accompanies a willingness to revive the Privileges or Immunities Clause.
Advocates of liberty should refuse to participate in that.
Why is this so
important? Consider that in the light of history, our law with regard to
privacy is in a bewildering and perhaps untenable state. No society before ours
has ever regarded religious beliefs and sexual matters as being purely private
affairs into which the government may not intrude. The reason is that every
society before ours believed that there are consequences to society from a citizen’s
private religious or sexual relations—something it is impossible to deny. The
difference—and sole defensible basis for the difference—is that no society
prior to ours had a conception of the natural rights of the individual. That
revolutionary idea lies at the heart of our Constitution. All alternatives to
it, no matter how sophisticated they may appear, are variations on the same
ancient theme which the Constitution’s authors rejected: namely, the notion that
individuals have only such freedom as those in power choose to give them. That
idea lay at the heart of what I have called “permission societies,” and unless
abandoned, that idea will inevitably lead to our nation abandoning its
commitments even to those aspects of freedom we might blithely assume to be
safe and sound today, including religious and sexual privacy. It certainly can happen
here. It has happened virtually everywhere else.
Read the rest here.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
