Economic freedom is a constitutional right built into the fabric of the ideals upon which our nation was founded. Unfortunately, courts have relegated it to a kind of second-class status over the years. Now, in a lawsuit coming out of Kentucky, the Goldwater Institute is urging the Supreme Court to fix this problem and extend full constitutional protection to the right of economic freedom—a right “deeply rooted in this nation’s history and tradition.”
The case involves the Bluegrass State’s “Certificate of Need” law, or “CON” law—which prohibits medical clinics from operating unless they first prove to the government that there’s a “public need” for such a clinic. Because it’s impossible for government to predict what the public needs, these CON laws block innovative new medical care options from reaching the market, which means they deprive people of services and block physicians from helping patients. Thus, when two Nepali immigrants, Dipendra Tiwari and Kishor Sapkota, wanted to start a business helping the Nepali-speaking community in Kentucky—providing a unique service to a group of people who might not otherwise get the nursing and medical care they need—they were told no. It wasn’t because they’re unqualified or incompetent, but rather because government bureaucrats think there are already enough medical clinics.
Dipendra and Kishor sued, arguing that this restriction takes away their right to earn a living for no legitimate reason. Unfortunately, for almost a century now, the U.S. Supreme Court has distinguished between constitutional rights it calls “fundamental”—and which the justices carefully protect against government overreach—and rights it considers less important. These lesser rights are only given “rational basis scrutiny,” a piece of legal jargon that means legislators and bureaucrats may disregard these “non-fundamental” rights in all but the rarest instances. Worse still, courts classify some of our most important constitutional freedoms as “non-fundamental,” thereby rendering these rights largely meaningless. This includes private property (the right most frequently mentioned in the U.S. Constitution) and the right to earn a living—what the founding fathers called “the pursuit of happiness,” and what we today call the American Dream.
As we argue in our friend-of-the-court brief, this right has deep historical roots: English courts were protecting it under the “law of the land” provision of Magna Carta almost two centuries before the United States declared independence. If a right must be “deeply rooted in this nation’s history and tradition” in order to qualify as “fundamental,” as the Supreme Court recently said, then the right to economic freedom certainly qualifies. And it was one of the primary individual rights that the authors of the Fourteenth Amendment had in mind when they crafted that important constitutional provision.
It was only in the 1930s that the Supreme Court decided to lay aside that essential part of constitutional liberty, in a series of cases that invented the “fundamental”/“non-fundamental” distinction in order to expand government power over the economy. There was no constitutional foundation for doing so, and the result has been to deprive people like Dipendra and Kishor of the legal protections to which they’re entitled—as well as blocking the public from obtaining goods and services that would improve their lives. It’s high time the justices reconsidered those precedents, and made clear that the right to earn a living is among our most important constitutional freedoms.
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
