Supreme Court

State Supreme Courts Stand Up for Economic Liberty While SCOTUS Falls Down on the Job

"We have long interpreted the Georgia Constitution as protecting a right to work in one's chosen profession free from unreasonable government interference."

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The U.S. Supreme Court has an unfortunate habit of shortchanging certain constitutional rights.

When the justices hear a case involving a possible infringement on the right to free speech, they generally presume that the regulation at issue is unconstitutional and force the government to justify its actions. That is as it should be.

But when the Court considers a possible infringement on the right to economic liberty, it grants the government a broad degree of deference, not only presuming the regulation to be constitutional but also forcing the regulated party "to negative every conceivable basis which might support it." In other words, the Supreme Court tips the scales heavily in favor of the government in economic liberty cases.

Fortunately, several state supreme courts have stood up where SCOTUS has fallen down on the job. In Patel v. Texas Department of Licensing and Regulation (2015), the Texas Supreme Court voided an occupational licensing scheme for eyebrow threaders, on the grounds that the regulation served no legitimate health or safety purpose and violated the economic liberty secured by the Texas Constitution. As Justice Don Willett observed in concurrence, "this case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee." (Disclosure: Willett favorably cited my book Overruled in his Patel opinion.)

The Georgia Supreme Court gave economic liberty its due in a case decided today. Jackson v. Raffensperger arose from a 2018 law that required lactation consultants to obtain an occupational license from Georgia's secretary of state before they are permitted to offer professional advice about breastfeeding. Mary Jackson, a veteran lactation consultant with decades of experience, challenged the requirement in state court, arguing that it lacked a genuine public health or safety purpose and violated her right to earn a living under the state constitution. The Fulton County Superior Court dismissed her case, arguing that the Georgia Constitution protects no such rights.

The Georgia Supreme Court disagreed. "The trial court erred," the state high court said today. "We have long interpreted the Georgia Constitution as protecting a right to work in one's chosen profession free from unreasonable government interference." Thanks to that ruling, Jackson's case against the occupational licensing law has been revived and will now move forward.

It's a shame that SCOTUS doesn't show the same fidelity to the economic liberty that's secured by the federal Constitution.

NEXT: Texas Admitted It Can't Enforce Its COVID-19 Lockdown. More States Should Do The Same.

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  1. Damon,
    States make the licensing of barbers and beauticians mandatory supposedly to protect the public. The main reason given is protection of health and safety. They get training in hygiene and sanitation, supposedly to protect the public. What happens the first time we get a health scare? They shutdown one of the few businesses that has the training to deal with it. Go figure.

    1. It’s almost like the licensing is more of a revenue generator than having anything to do with ‘public health’.
      Not to mention, I am waiting for the out of state worker to challenge on restraint of trade. If states have to recognize driver’s and marriage licenses from other states, why not work permits?

      1. It’s almost like the licensing is more of a revenue generator

        It’s more about power than revenue. If running a business is a privilege that the peasants receive from their lords, then that privilege can be revoked by the lord. The peasants can be threatened with this revocation any time the lord wishes.

        1. The word “license” literally means “permission.” That which has the power to grant permission also has the power to deny permission. Or to revoke it.

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      2. “revenue generator”

        No that’s a side effect.

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      3. Don’t forget the power of regulatory capture. Limiting the number of people that can compete in a sector means that once the government has given you the thumbs up, you can charge more than you could in a free market since supply is artificially depleted.

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  3. “this case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee.” Are Willett and Welch the same person? You heard it here first!

  4. “Texas Supreme Court voided an occupational licensing scheme for eyebrow threaders”

    Did anyone else read that and go “What the fuck are eyebrow threaders?”?

    1. If you have to ask, big man, you can’t afford it.

    2. I don’t know either. You’ll have to ask AmSoc, Kirkland, or Tony.

  5. I must ask Mr. Root what laws should be enforced? And what right does a selfish person have to ignore health regulation and expose everyone else to his or her condition? Would I be within my rights to physically restrain that person, or perhaps in a stand your ground state, such as Florida, be justified to use my gun were I to actually feel threatened. Might I shot to kill under those circumstances?
    Just asking for a friend.

    1. Gotta be sarc, right?

      1. Never assume.

  6. Nobody has the slightest concern that you would actually follow through on those threats since you are exhibit all the virtue signalling of a giant pussy. Breathing air in your general vicinity is not a violation of the NAP. If you are scared, stay in your house. If some mouth breather breaks your door down, by all means, threaten him with your non-existent gun while he fucks you in the ass.

    1. Dang it, my reply to BrooklynACE didn’t thread properly… sigh.

      1. I’m hoping his/her comment was sarc. Otherwise, the stupidity is too abysmal to engage.

        1. The actual twitter threads for that mother getting arrested for not wearing the mask right suggests there is plenty of stupidity out there.

  7. “…unreasonable govt. interference” is defined, determined by the rulers, not the ruled. Therefore, no limits to govt. power exist within the system.
    The limit on the initiation of violence by authorities is by citizens who refuse to allow their right’s violations, e.g., the salon owner who opened up without permission. To ask permission is to beg a master for less slavery. All initiation of violence against citizens is unreasonable, no matter if it’s public or private.

  8. Well occupational licensing these days is the least of our worries because those pricey credentials haven’t stopped petty government tyrants from shuttering hundreds of thousands of small businesses.

    1. I’ve been leaning on IJ about this, but getting ‘we must chose our cases with care’. Not sure this is the time to try for gains 5 years out when the barricades are right in front of you.

      1. OK, got a response from IJ. They are not aiming 5 years out, they are picking the state judgements to push to the SCOTUS.
        Still doing good work.

  9. Newsom’s on the tube (flat-screen actually; does anyone still have a CRT display?).
    He’s pitching his ‘planned reopening’ of the CA economy without the least irony; he seems to believe he is capable of ‘planning’ an economy, especially one so catastrophically damaged by his earlier ‘planning’!
    His connection with business is limited to this: He and one of the Getty kids bankrolled a couple of restaurants (“Plump Jack”), one in Cow Hollow in SF, the other in Squaw Valley at Tahoe, I’m guessing so they never had to worry about reservations.
    I sincerely hope they both tank, or at least require HUGE infusions of his cash to survive.
    The son of a bitch is cluically-challenged.

    1. He’ll be a front-running presidential candidate for 2024’s Stupider-than-the-Other-Party. He himself is not stupid, but a cunning power-mongering member of the entrenched political mafia who considers his personal political motives more important than the interests and well-being of the citizenry.

  10. “The U.S. Supreme Court has an unfortunate habit of shortchanging certain constitutional rights. ”

    Just 1- 19.

  11. “economic liberty”

    Unlike free speech and the power to legislate, this concept is not in the constitution.

    1. See Amendments 9 and 10? You seem to think these are meaningless.

      (Of course, SCOTUS seems to agree, since it rarely holds the government to its limited enumerated powers. But that’s SCOTUS failing at its job).

    2. Unlike the right to privacy/abortion?

    3. “Unlike free speech and the power to legislate, this concept is not in the constitution.”

      Neither is the right to drink a beer at the ballpark, you fucking ignoramus.

      1. Neither is fishing on Fridays

  12. If they simply recalled the 9th and 10th amendments and stuck with enumerated powers, they wouldn’t have to worry with all of that “economic rights” business.

    In fact, posing the question that way kind of turns the whole thing on its head. The primary question isn’t “do we have rights that need protecting” from some particular law.. it is “do they have the authority in the first place”. A strict reading of “enumerated powers” would force the answer “no” in a great majority of cases.

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  14. Damon, that seems like more of a straight up brag than a disclosure.

  15. The difference in case outcomes mostly comes down to the legal balancing test used. Free speech, and most other rights specifically listed in the Bill of Rights, fall under the strict scrutiny standard. Economic restrictions, which usually aren’t dealing directly with rights explicitly protected or listed in the Constitution, are usually evaluated under the rational basis standard (the test used for most cases). That’s why the outcomes are different.

    Learn the legal balancing tests and their application if you’re going to cover the Supreme Court, Root. The Court rules on their cases based on them and the law, not on “pure” libertarian principles. Complaining about the cases without discussing that is just a child’s tantrum because you didn’t get the outcome you wanted.

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