14th Amendment

Safeguards for Economic Liberty 'Spook the American Left'

Liberal hysterics in defense of occupational licensing and property seizures.

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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