Antitrust Timothy Sandefur on The Right to Earn a Living


"The rational basis test was basically concocted out of thin air by the Progressive movement, gradually, but applied to American law with no constitutional basis. That's why you have cases like [the eminent-domain case] Kelo or these licensing restrictions that prohibit people from earning an honest living."

So says Pacific Legal Foundation attorney and author, Timothy Sandefur, who sat down with to discuss his book The Right to Earn a Living. The "rational basis" review grew out of a 1938 Supreme Court case and essentially argues that as long as a government action can be "rationally tied" to a "legitimate" government interest, anything goes.

Sandefur discusses the "four big Progressive ideas" that came about during the New Deal-era Supreme Court in the 1930's. They include: 1) Rather than being inherent, rights are permissions given to individuals by the state; 2) Government exists to "improve" society, not to protect individual rights; 3) A reading of judicial restraint that means when government violates your rights, the courts should do nothing about it; and 4) Belief in a "living Constitution," that will be radically reinterpreted in various contexts. 

Approximately 8.30 minutes.

Shot by Jim Epstein and Dan Hayes.  Edited by Dan Hayes.

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NEXT: New York vs. Consumer Choice, Part 3,492,238

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  1. #1 is the most scary

  2. “rational basis” being a relative term, given it’s complete irrationality and ability to make blanket-statements into law.

    Also, I had to explain to someone why morals supercede law. Why that even has to be explained is beyond me.

  3. Mr. Sandefur is correct, but so what? Who is going to change it? Are there enough people in this country who care? Care enough to change it? Of course not, Or it wouldn’t be this way in the first place!

  4. If only there was a rational basis for most of the rules we’re forced to live by these days, that would be a great improvement. To paraphrase Voltaire about the Holy Roman Empire, “rational basis” is neither rational, nor is the ex post facto rationale fabricated by judges when rubber-stamping legislative or regulatory whims the actual “basis” for those rules.

    1. I was going to say this, only less eloquently.

  5. “Their primary loyalty is to preserving the regulatory welfare state and not enforcing the Constitution of the United States.”

    Yes, this is the primary reason why government tyranny is so pervasive today.

  6. Sandefur discusses the “four big Progressive ideas” that came about during the New Deal-era Supreme Court in the 1930’s. They include: 1) Rather than being inherent, rights are permissions given to individuals by the state; 2) Government exists to “improve” society, not to protect individual rights; 3) A reading of judicial restraint that means when government violates your rights, the courts should do nothing about it; and 4) Belief in a “living Constitution,” that will be radically reinterpreted in various contexts.

    Pretty much, yes, in a nutshell. Basically: government is here to be fascist.

  7. The rhetoric of judicial restraint seems appealing – especially to those who have been on the receiving end of judicial tyranny – but it basically means that if the other branches of the U.S. government jump off a bridge, the federal courts must jump off, too. Nothing ‘restrained’ about that – it’s a triumph of nice-sounding words over reality.

    Any branch of the government (U.S. President, Congress, federal courts, states) must be ‘restrained’ in that they should obey the law – including the laws of Nature and Nature’s God (aka Natural Law) mentioned in the Declaration of Independence. That includes the right to an honest living.

    One unfortunate detail here is that, per the 10th Amendment, the federal government does not have unlimited authority to enforce even natural law, much less to enforce desirable social policies (eg, the secret ballot). The feds’ power to enforce these things must come from some provision of the federal Constitution.

    Which doesn’t mean that the states have the “right” to violate the natural rights of its own people where the Tenth Amendment limits the feds. Look at the wording of the Tenth – the powers not delegated to the feds or prohibited to the states by the U.S. Constitution are reserved to the states *or the people.* So if the 10th Amendment doesn’t allow federal intervention, then the people still can (and should) resist state interference with their liberties – and can even call on the federal government for help, by pressing for an amendment to the federal Constitution.

    As for the right to earn a living – I see nothing in the federal or state constitutions authorizing government at either level to violate that right – many state constitutions explicitly affirm the right of the people to “the fruits of their own labor.”

    So the 10th (and 9th) Amendments generally prevent the feds themselves from violating the right to the fruits of one’s own labor. If (as many people argue) the 14th Amendment prevents the states from violating that right, then Congress and the federal courts can enforce it. But if the Fourteenth Amendment does *not* protect that right (and there’s arguments on both sides) then its the responsibility of the people of the various state, relying when necessary on their own constitutions, or through demanding a federal amendment, to protect that right. How can I say with 1005 certainty what the 14th Amendment *really* means on this subject? But if the feds can’t protect this right when violated by the states, the feds sure as heck can (and must) refrain from violating that right through its own actions.

  8. 100% certainty, not 1005

  9. An excellent example of why the judicial system is broken.

  10. I’ve got a hypothesis about the “Living Constitution” concept. It think it arose because the movement to form independent countries had a large setback when the South lost the Civil War. There were many people looking for a way to oppress Blacks, but they were stuck with a Constitution that forbade it. Darwin’s books happened to reach the USA around that time, so they clung to the idea of an evolving Constitution as a way to make the Constitution less binding.

    1. Do you have any evidence to support this hypothesis? Darwin’s “On The Origin of Species” was published around 1859, so it might have been around for a while before the end of the Civil War, so it’s a possibility it might have been somewhat distributed in America, but is there any proof people were using his works to justify changing the constitution to allow oppressing ‘blacks’?

  11. Reason should suggest this topic as a show on Glenn Beck. He would love it and so would his audience.

    1. Good thing Glenn Beck is a fucking retard.

    2. No, they wouldn’t. Plus, this article doesn’t have pictures of socialists and charts to show how it’s all a One World Government conspiracy.

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