14th Amendment

Safeguards for Economic Liberty 'Spook the American Left'

Liberal hysterics in defense of occupational licensing and property seizures.


Writing at the Washington Examiner, columnist Timothy Carney highlights a few of the more ridiculous liberal responses to recent legal decisions striking down various economic regulations. "In all of these cases," Carney writes, "government power advanced the interests of the well-connected. In all of these cases, the poorer, the less powerful, the smaller, sought basic economic and personal liberty. And in all of these cases, you could find liberals lamenting the expansion of liberty and resisting any diminuition of government power whatsoever." For example:

Credit: Reason TV

The Supreme Court ruled this summer that the government could not take the raisins grown by farmers Laura and Marvin Horne. Sun Maid, the largest single marketer of raisins in the world, sided with the government and lost. Again: Big Business supported a price-fixing cartel that hurt small businesses.

This was "worrisome," according to liberal writer Ryan Cooper at The Week. It "rolled back a key element of the New Deal."

Deregulated eyebrow-threading is another frontier of dangerous economic liberty. "Texas Could Become an Even More Dangerous Place," the Slate headline warned this summer. The article freaked out over a "startling decision" by Texas's Supreme Court. The decision in question struck down an occupational licensing law governing eyebrow-threading. That law, of course, was transparently an effort of established beauty businesses to protect themselves from small-business competition.

Carney is right to mock these liberal hysterics. But it's important to remember that liberals are not the only ones who freak out at the idea of the courts protecting economic liberty from senseless government regulation. Plenty of conservatives also freak out under those conditions. For instance, in 2010 the U.S. Supreme Court was asked to overturn an 1873 decision known as The Slaughterhouse Cases. That 1873 precedent famously gutted the Privileges or Immunities Clause of the 14th Amendment and held that economic liberty was entitled to no meaningful constitutional protection from state regulation.

Yet when the Supreme Court was finally asked to overturn that destructive precedent in 2010, a number of conservatives rushed to Slaughterhouse's defense. "What's so important about that ruling is that there's nothing in the Constitution about such an economic right," argued Ken Blackwell of the conservative Family Research Council and Ken Klukowski of the conservative American Civil Rights Union. In their view, the 14th Amendment should offer no shield for economic liberty against government infringement. Overruling Slaughterhouse, the two conservatives fretted, would allow the federal courts to "use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws and business regulations across the country." The horror!

As I said, Carney's mockery of liberals is on target and well deserved. But there's plenty more mockery to go around.

Related: How Libertarians Are Changing Conservative Views on Economic Liberty and the Constitution

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  1. No one should be allowed to engage in commerce without first asking permission and then obeying orders! The alternative is chaos! Chaos! Chaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaos!

    1. This. It’s madness without all the controls, really. Nothing would WORK! And people would SCREW you, ALL THE TIME!

      Just move to Somalia if you want that.


        1. +1 Jo Bench, super-hot bass player.


          1. Fuckin a right…huge fan of that band. Check out War Master from Houston if you like BT

          2. I think you posted the wrong link. You said super-hot then linked to someone who is not, in fact, super-hot.

            1. Diff’rent Strokes for diff’rent folks my friend. Raven hair, from Nottinghamshire and a bass player… yes please.

    3. Dont forget: “Fuck them, we got ours.”

  2. There does seem to be an obvious difference, which is that leftists oppose any limits on state power whereas the conservatives are just arguing in favor of the rule of law. Compare:

    “Texas Could Become an Even More Dangerous Place,” the Slate headline warned this summer.

    Letting people get eyebrow threading licenses without 750 hours of training will literally kill you. The conservative argument:

    “What’s so important about that ruling is that there’s nothing in the Constitution about such an economic right,” argued Ken Blackwell of the conservative Family Research Council and Ken Klukowski of the conservative American Civil Rights Union.

    If the court overrules the Slaughterhouse Cases, the Privileges or Immunities Clause can mean anything courts say it means. The Supreme Court could declare a constitutional right to government-provided health care or “decent” housing, a free college education, a “living wage” or a clean environment, resulting in a court-ordered cap-and-trade system.

    The conservatives’ argument is just pro-federalism and is based on an open debate about what the 14th Amendment actually entails. They also fear the unintended consequences of the decision, which is reasonable. The liberal ‘argument’ is that without 750 hours eyebrow threading regulations, we will all be murdered with staph infections.

    One of those is slightly more reasonable.

    1. In short, your paraphrase of Blackwell’s argument is dishonest because it doesn’t take into account that he’s really arguing about the unintended consequences of overturning Slaughterhouse which he thinks could results in the expansion of all sorts of positive rights, and would also result in the courts basically having the ability to do whatever they want without limitation. That seems to me to be an argument libertarians could get behind, and if you disagree with his point you should answer his point rather than just pretending this reasonable position is in any way analogous to the lunatic ravings of a Slate contributor.

    2. The conservatives’ argument is just pro-federalism

      But it might be incorrectly about federalism. for instance, the federal government has the right to regulate interstate commerce, primarily to maintain a free-trade zone among the several states.

      Also, the primary argument here was a taking, falling under the 5th amendment. I don’t see how federalism trumps the constitutional right to not have your property taken.

      I hear what you’re saying here, Irish, and I agree, that the conservative argument was far more nuanced than the typical ape-like argument of the progressives lionizing government power.

      But I still think the conservative argument is misguided.

      1. I just don’t see any difference in result. If you say ‘local laws oppressing voluntary economic liberty must stand because economic liberty is bad’ or ‘local laws oppressing economic liberty must stand because localities should be free to oppress economic liberty because local laws are good’ you end up with the same thing given you know darned well many localities are going to choose to have such laws.

      2. quote: ” the federal government has the right to regulate interstate commerce,” Not true at all. That assignment of power to FedGov reads : make regular”….. that is, to remove impediments one state might raise up against another, as in the insane and destructive tariffs Lincoln’s government and those before had levied against the South, crippling them economically. A modern day example would be many of the restrictive laws enacted by California, most recently the insanity of Sierra Club and HSUS pushing through new regulations concerning egg-laying chickens and the amount of space they “need” in the facilities…. which then requires egg producers in any other state desiring to “export” their eggs to California to comply… at a cost of billions.. hiking the price of eggs nationwide. California gets off with an unconstitutional restraint on interstate commerce, “because of the childlr, er, chickens”. Or how about forcing car manufacturers to comply with California’s “special” smog requirements? Cars originally sold into Tennessee cannot ever be registered in California.. a clear violation of that interstate commerce clause.. and FedGov sit on their thick ends and do.. what?

    3. The idea that “there’s nothing in the Constitution about such an economic right,” is idiotic because there’s no bloody difference between “economic” rights and human rights.

      1. Economic rights– the right to trade freely– are civil rights.

        1. Economic rights = the right to the fruit of your labor. There is no more fundamental right than the right to support your own existence and provide for your own comfort.

      2. Economic rights? You mean like, “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” You know, that old Fifth Amendment stuff?

        1. Yup. And denial of the use and enjoyment of one’s property, time, skill, knowledge, is a taking. Its not really MINE until/unless I have the right of DISownership along with ownership. Telling me I cannot “disown”, as in, sell, trade, give away, otherwise transfer or dispose of, is the same thing as taking it. I no longer have full use of it.

    4. In this particular case the local law in question is one liberals like policy wide and conservatives don’t. If it were a local law on, say, selling pornography you’d see the sides switch I’d bet.

      1. I don’t even think liberals like it policy wise. Not many liberals really defend occupational licensing of eyebrow threading.
        They are afraid of overturning a *different* set of precedents: the ones that give the government all sorts of regulatory power over the economy. Pornography is considered a speech issue, although they have no problem demanding condoms in porn mags.
        The position here is more like “we have to have occupational licensing of eyebrow threading, because otherwise they’ll take away our farm subsidies and food safety regs.”

  3. The conservative “argument” ignores the ‘enumerated powers’ approach enshrined in the constitution. As such, I can’t find it any less an egregious attack on rule of law than the liberal hysteria. BOTH sides want *control*, regardless of the strict limits on such built into the oh-so-fragile constitution.

    1. How can government get anything done if it is constrained by that quaint notion of enumerated powers?

      1. “We can do better if you just give us more power. Trust us. We’re Top Men?”

  4. Overruling Slaughterhouse, the two conservatives fretted, would allow the federal courts to “use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws and business regulations across the country.”
    Economic terrorism; destroying the fabric of civil society for the benefit of some smelly peasant.

    1. Federal courts already do such at whim. Why on Earth would this change things?

  5. It never seems to occur to those in favor of regulation that their efforts will not prevent abuses, but merely shield the abusers behind an agency that approved the abusive practices.

    1. Very true. The people who are first to shout “Externalities!” are the first ones to support these regulatory agencies which shield abusers from lawsuits so long as the abusers follow the rules set by the regulators.

      1. For example, will the EPA be liable for BP style class action lawsuits in their recent river pollution? I doubt it.

  6. the unintended consequences of overturning Slaughterhouse which he thinks could results in the expansion of all sorts of positive rights
    I see two separate issues. The “right” (freedom) of an individual to engage in voluntary economic transactions is not the same as a “right” to` coerce others into providing goods/services/benefits.
    The government has shown little restraint in offering up positive rights; I certainly don’t see this particular decision as the lever which opened the floodgates.

  7. The Left has an almost OCD tic about not having an identifiable person and rules on to govern any given situation.

    The idea of spontaneous order induces nausea in them.

    1. The idea of spontaneous order induces nausea in them.

      I’ve made this observation for years, citing Dennett’s arguments in favor of universal Darwinism. Despite their alleged fucking love of “science”, the Left are mystics at heart, unwilling to extirpate Mind from the cosmic pyramid…despite all evidence that suggests algorithms can produce order from chaos without mind.

    2. A rule for everything and everything following its rule. But ask them where the rules for the universe came from.

    3. They are so scared of anything that is “unregulated” (which really means unregulated by government) it is almost funny. Seriously, they don’t even stop to consider whether something actually poses any reasonable threat. Something being unregulated is itself used as evidence that it is dangerous.

      You see this any time some new technology or service becomes available.

      1. Haven’t you seen teh figures on carbon emissions from unregulated respiration? We need mandates for individual carbon capture devices, stat!

      2. You’d probably be happy getting raped by your Uber driver on the way to being raped by your Airbnb host.

          1. I like Blazing Saddles, but won’t always provide the Pavlovian response.

        1. Not possible since I’m male.

      3. I still think it comes down to a fundamental loathing of humanity. An individual with freedom can be counted on to abuse that freedom by hurting other people. So how does that individual go from pure evil if he acts on his own to pure altruism the minute he pins on a government badge? Simple – government is the hivemind and once you’ve been assimilated you are no longer an individual but a mere cell within a larger organ. Once you stop thinking and doing on your own, once you simply act and react to stimuli as a frog leg to an electrical current, you can be trusted because you are no longer human. Deny your humanity, your free will and your consciousness, admit that you are just a mindless meatbag full of chemicals governed by the random electrical buzzing in your brain, and you too can be One Of Us. As long as you insist you are a Man and all that entails, you are The Enemy.

        1. which fully explains the very recent court getting right in the face of Justice Department hacks for lying, false prosecuting, witness tampering, intimidation, false pretenses proffered for plea bargains, etc, in a set of cases against New Orleans police (post Katrina) which have now been thrown out because of DoJ corruption.. al these “cells” finctioined perfectly to design to falsely convict and sentence a number of officers, and coerce others to plea bargains. Is THAT the sort of thing you mean?

      4. And it really does not matter what regulation means, just as whatever sector is regulated. If they are tod that a heavily regulated sector is unregularted then there must be more.

    4. Which is especially funny from teh enviromentals who claim to love the natural world which is nothing but spontaneous order and self-regulating systems.

  8. The conservative argument is of a completely different kind than the liberal one here. Conservatives are not defending these laws. They are pointing out the dangers of declaring them unconstitutional. Liberals in contrast believe in the laws and thing they are a great idea.

    1. Re: John,

      They are pointing out the dangers of declaring them unconstitutional.

      What are the dangers of overturning the Slaughterhouse decision? In order for the objections to have any merit, the dangers must be clear and specific.

      1. They are specific about the dangers: if P&I is allowed to be read broadly your as likely to get pro government ‘rights’ declared as government limiting ones.

    2. Irish made that (well made) point above.

    3. Another case where it would have been nice if the authors of the constitution had been a bit more specific about what they meant.

      1. Even where they used unambiguous terms like “shall make no law” and “shall not be infringed”, they’re ignored in favor of other ‘interpretations’.

        1. Not as completely as P&I is ignored.

    4. I think John and Irish (and the majority in the Slaughterhouse cases) are onto something – it’s a question of how much you trust the federal government – especially the judicial department – to responsibly review state laws under the Privileges and Immunities clause.

      While I have been belatedly persuaded that this P&I clause should be given a broad interpretation, I totally see why others are skeptical. Knowing how the courts have used their powers in “interpreting” other parts of the Constitution, imagine the fun they’d have with another constitutional clause to play with!

      What if, in addition to a privilege or immunity of earning a living at an honest trade, the courts declare a privilege or immunity to get welfare payments? It’s not as if the courts haven’t done worse things.

      My answer to that concern would be that lefty activist judges will always find a rationale for their activism – equal protection, due process, whatever – because they simply decide on the result they want and make up some BS about how the result they want is based on some arbitrarily-chosen constitutional clause.

      So this debate is largely among conservatives, with seats at the table reserved for honest liberals – people who admit that the rule of law can sometimes produce interpretations you don’t like.

      1. For these people, I would say that there is a strong case that the P&I clause in the 14th Amendment was meant to improve on the pre-existing interpretation of the P&I clause in the original constitution. The latter provision had been read simply to give, say, a citizen of Iowa visiting California the same privileges and immunities of a California citizen, no more and no less. There is evidence – real evidence, not the made-up kind – that the framers of the 14th Amendment wanted to expand this anti-discrimination interpretation so as to protect privileges and immunities in an absolute sense – that is, to protect the privileges and immunities of Californians against the California government, if the latter did not fully recognize said privileges and immunities.

        I acknowledge that an alternative, more federalist interpretation of the P&I clause is available, I simply think that of two plausible interpretations, we should go with the broad interpretation. But I can see how others, applying the same principle, would go with the narrow pro-federalism interpretation in the belief that this would cause more of a long-term benefit for liberty.

  9. Safeguards for Economic Liberty ‘Spook the American Left’

    As well it should, for such deregulation would lead to children crawling on their bellies while digging the earth for worms to eat and their mothers prostituting themselves so they can buy soy milk.

    Or something. I mean, I can’t keep up with Tony’s marxian shibboleths.

  10. Highlighting the Fed’s most glaring problems of “pretty awful international data,” the fragility of the market, a lack of complete confidence in its models, and worries that the dollar could become too divergent from other currencies, El-Erian said he understood why The Fed has become so “wishy-washy.” However, he agreed a shift away from market-supportive policies could spark a nightmare scenario.

    How’s your solid Obama-led economic recovery looking now, Shrike?

    Hey Shrike, have you seen the price of gold over the last couple of weeks?


    1. He doesn’t attend on bad market days

  11. “Texas Could Become an Even More Dangerous Place,” the Slate headline warned this summer. The article freaked out over a “startling decision” by Texas’s Supreme Court. The decision in question struck down an occupational licensing law governing eyebrow-threading.

    The danger lies in having a face with no eyebrows. People’s lives are in peril!

    1. Wait, I thought it was Eyes Without a Face???

      /Billy Idol

    2. And yet Florida thrives despite the occasional unlicensed butt implants using Fix-a-Flat.

      1. Florida could survive anything short of a Dakota winter.

        1. What if they got little sweaters for the pythons?

          1. Under twenty feet of snow, sleet and ice, the python socks wouldn’t help.

            1. Python Sock

              Band name, or commenter handle?

  12. Licenses or anarchy, those are your only two choices.

      1. You can make your own, but it has to be written on unruled paper.

          1. I did that just for you.

        1. I should like to give you an award of some sort.

  13. “But it’s important to remember that liberals are not the only ones who freak out at the idea of the courts protecting economic liberty from senseless government regulation.”


    1. Just thought I would preempt complaints in either direction…

      1. You are doing the work that Gojira normally would do. It is a blessed mission…

        1. Eh, thought I would pitch in for once.

    2. I’ll uh, have what he’s having.

  14. Maybe I’m reading too much into it, but the “conservative” argument sounds a lot like the liberals’ anti-gun argument.
    “Well, you might say you want a gun just because yo want one, and that you have no intention to misuse it, but why should I believe you won’t start hunting tiny schoolchildren for sport if we allow you to have one?”

    1. The difference is that, in the gun argument, “you” is the individual, while in the Slaughterhouse argument, “you” is the federal government, which is, I believe, far less reliable than the individual.

  15. Good, no one is playing with the troll today.

    1. There was a troll?

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  17. Safeguards for Economic Liberty ‘Spooks the American Left’

    That’s better.

  18. Or is it a testament to the popularity of his libertarian-ish positions? He supports the Iran deal, gay marriage, and fiscal restraint, according to Rolling Stone:

    Mmm, it’s a testament for peoples’ bottomless desire to seek lulz.

    1. Gah, wrong thread.

  19. Lets jsut roll that beautiful bean footage.


  20. Can someone actually come up with a reasonable sounding example of how the privileges and immunities clause could be used to create a “positive” right?

    I see people defending the conservative position on this, but in order to do so, I would think that you would have to posit a plausible example of what they fear.

  21. Gods determine what you’re going to be. — Julius Erving

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