Tag: right to earn an honest living

We Aren’t Exaggerating When We Rail Against Threats to Economic Liberty

Oregon officials told a 7-year-old with a lemonade stand that she needed to obtain a temporary restaurant license or incur a fine.

I’m rendered speechless, but Josh Blackman exploits the “teaching moment”:

If you are generally opposed to any notion of the right to pursue an honest living, ask yourself, why does it bother you so much that this little girl cannot sell lemonade. Then, ask yourself what you think about other regulations that stifle the entrepreneur. This story does not tug on our heart strings simply because she is adorably selling lemonade for 50 cents a cup (suggested price) at a fair. It tugs on our heart strings because the state is unnecessarily clamping down on this little girl’s ability to make some money.

More from Tim Sandefur.

Is the Supreme Court Conservative?

In my last two posts I described how the New York Times misunderstands the Constitution and highlighted Reason’s great new article comparing conservative and libertarian theories of constitutional interpretation.  Well, now I have a chance to put those topics together, in response to yesterday’s big front-pager entitled “Court Under Roberts Is Most Conservative in Decades.”

Times Supreme Court reporter Adam Liptak – generally a sharp and honest broker – surveys some new political science literature and concludes, among other things, that since John Roberts became Chief Justice five years ago, the Court has been moving (modestly) to the right and is now “the most conservative one in living memory.”  Ed Whelan debunks both of these empirical claims at NRO’s Bench Memos blog – I disagree with Ed on some legal issues, not least unenumerated rights, but his fisking is worth a read – and I want to add two broad points.

First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable.  Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations ”liberal” while those favoring prosecutors, employers, and the government “conservative” (as the scholars who maintain the database maintain)?  What about union members suing unions or large corporations suing each other?  What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term’s ”honest services fraud” cases)? What about “reverse” racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)?  What about an oil company suing the EPA?  A financial services company suing the SEC (or vice-versa)?

And what about civil rights claims involving the Second Amendment, or the Fifth Amendment’s Takings Clause, or the right to earn an honest living? Are those not ”real” civil rights claims?  What if it’s poor people losing their houses to a big developer who promises a town it will create jobs and increase tax revenues?  What if it’s black hair braiders who can’t set up their shops without passing haridressing license exams requiring expertise only with white hair styles?  What if it’s women who want to buy and carry handguns to defend themselves on their walks home in a dangerous neighborhood?  Attempts to code such cases – like attempts to decide them based on “empathy” or support for the “little guy” – are bound to fail.

Second – and this ties together all the criticisms – the labeling of decisions (and courts!) as “conservative” and “liberal” ultimately boils down to results-based analysis that equates law with politics.  The liberal political position is to favor abortion rights, separation of church and state, gun control, wealth redistribution, economic regulation, and racial preferences, and to disfavor the death penalty.  It is then obvious that court rulings against those positions must be “conservative.”  Add in the fact that the researchers performing all these analyses –and reporters writing about them – are themselves quite “liberal” and it becomes all the more alarming when the Supreme Court moves in a “conservative” (= wrong) direction.

But you can’t simply code cases, tally up votes, and call it a day.  Is there no difference between a vote to uphold restrictions on partial-birth abortion and one to overturn Roe v. Wade?  Is voting one way because of stare decisis the same as voting that way because you think the underlying precedent is correct?  Is a vote to overturn the Slaughterhouse Cases and revive the Privileges or Immunities Clause the same as one to “incorporate” via the Due Process Clause?

And what about all those unanimous and “odd bedfellow” cases – the ones where Justices Scalia and Ginsburg are on one side and Justices Breyer and Alito on the other?  Are Scalia and Ginsburg simply more “liberal” when it comes to the Sixth Amendment’s Confrontation Clause?  Is a judge who votes to strike down economic regulations while also recognizing a broad right to habeas corpus just a “moderate” (or perhaps “confused”)?  Or is that judge simply a “libertarian” as a matter of public policy?

While we’re at it, look at the First Amendment.  How do you account for the leading pro-free speech justices the last 20 years being Kennedy, Thomas, and Souter?  Is a vote allowing a statute that criminalizes certain kinds of disfavored speech “liberal” or “conservative”?  (If you have a ready answer, contrast what you think about hate speech laws with what you think about anti-pornography laws.)

Put simply, law matters.  Judges are not super-legislators voting on their preferred policy positions; they have different jurisprudential theories, some of which lend themselves more to “liberal” political results, some less, but hopefully it’s the Constitution and statutes that ultimately lead to those results over the long term.

In short, Adam, c’mon, covering the judicial branch is not like covering the political branches.  You know the difference between the Court and Congress so don’t allow your readers to think there isn’t one.

Sure, You Can Get a Business License — If Your Competitors Approve

Our friends at the Pacific Legal Foundation have filed another important suit in the battle for the right to earn an honest living.  PLF senior attorney (and Cato adjunct scholar) Tim Sandefur has the scoop:

Michael Munie is a St. Louis businessman who’s been in the moving business since he was 16 years old. He has a federal license that lets him move people’s household goods from one state to another. And he has a state license that allows him to move things within St. Louis. But he’s not allowed to move things from St. Louis to anywhere else in Missouri unless he gets permission from his competitors first.

That’s right—Missouri law dictates that whenever a person applies for a license to run a moving business, the state’s Department of Transportation must notify all the existing moving companies and give them the chance to object. If they do—which, of course, they always do—the applicant must prove that there’s a “public necessity” for a new moving company. What does “public necessity” mean? Nobody knows. There are no standards, no rules of evidence, no nothing.

Read the rest and find out more here.  Cato doesn’t litigate, of course – other than filing amicus briefs – but we certainly support those that do, including PLF, the Institute for Justice, the Goldwater Institute, the Mackinac Center, and many others.

Virginia Messes With Yoga Instructors’ Chi

Not to be too much of a megaphone for the Institute for Justice, but the “merry band of litigators” has struck again, this time going after the rigid rules stopping Virginians from finding inner peace.  It seems that in the fair commonwealth, you need a permit to teach yoga, which process entails paying $2500 and getting your “curriculum” approved by state bureaucrats, as well as other barriers to entry. For more details, see IJ’s case page and read this editorial in the Richmond Times-Dispatch.

Also, check out IJ’s video: