Does the Constitution Protect the Unenumerated Right to Economic Liberty?


Last week the U.S. Supreme Court declined to hear a legal challenge to Florida's occupational licensing requirement for interior designers. In response to the column I wrote criticizing the Court for this failure to protect economic liberty, I received several emails from readers who said they agreed with me that the Florida law was stupid, but failed to see why the Supreme Court should be allowed to interfere with it. The Constitution doesn't list economic liberty among the rights it guarantees, they told me.

In fact, the Constitution does protect economic liberty—not to mention other unenumerated rights, as the Ninth Amendment clearly states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

In other words, we possess far more rights under the Constitution than the document itself could ever possibly list. (The political scientist Stephen Macedo once helpfully described this arrangement as one "wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.") But since the Florida case dealt with a legal challenge to a state regulation, the specific constitutional provision we should be concerned with is the 14th Amendment, which reads in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.

To understand the original meaning of the 14th Amendment you need to first understand its origins in the free labor philosophy of the anti-slavery movement, which centered on an individualistic and market-oriented form of self-ownership. The abolitionist leader and escaped former slave Frederick Douglass nicely illustrated that philosophy in the famous letter he wrote to his former master. "You are a man and so am I," Douglass declared. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner."

The former Confederate states had other plans for Douglass' faculties in the aftermath of the Civil War, however, and began enacting a series of laws and regulations that robbed the freedmen (and their white allies) of their civil, political, and economic liberties. Louisiana, for example, mandated that, "Every negro is required to be in the regular service of some white person, or former owner, who shall be held responsible for the conduct of said negro." There's a term for that arrangement, and it's not self-ownership.

So the 14th Amendment was written and ratified to protect those rights and to enshrine the free labor philosophy into law. According to Rep. John Bingham (R-Ohio), the author of the section of the amendment I quoted above, the 14th Amendment secures the right "to work in an honest calling and contribute by your toil in some sort to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

Which brings us back to Florida's occupational licensing scheme. Requiring interior designers to carry a costly and unnecessary state license infringes on their economic liberty while doing nothing to protect the health, welfare, or safety of the public. It's precisely the sort of arbitrary interference with the right to earn a living that the 14th Amendment was designed to prevent.