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The Constitution and the Right to Pursue an Occupation

Whether state governments have authority to deprive

people of the right to pursue a chosen occupation or engage

in other economic endeavors is a question that has arisen

repeatedly in the United States.  To prevent an individual

from engaging in a trade or occupation altogether, or to

impose onerous conditions upon his freedom to do so, raises

serious constitutional questions.  The Supreme Court has

twice done an about-face on the degree of constitutional

protection that must be given to economic liberties, includ-

ing occupational freedom.

The Fourteenth Amendment states in part: "No State

shall make or enforce any law which shall abridge the privi-

leges 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; nor deny to any person

within its jurisdiction the equal protection of the laws."

Ratified in the aftermath of the Civil War, the amendment

imposed broad federal restrictions on the exercise of state

power.  As is true of all constitutional language, however,

the Supreme Court's interpretation of the Fourteenth Amend-

ment would be crucial.  Would it read the words as a sweep-

ing protection for the civil and economic liberty of all

citizens; or would it read them restrictively, thereby

allowing the states considerable latitude to enact legisla-

tion circumscribing the freedom to engage in commercial

activity?  Just five years after the ratification of the

Fourteenth Amendment, the Supreme Court adopted a very

restrictive reading in what have come to be known as the

Slaughterhouse Cases.7

The Louisiana legislature had passed a statute granting

to the Crescent City Company a 25-year monopoly on the

slaughtering of livestock in New Orleans and surrounding

parishes.  A suit was brought by butchers and other parties

adversely affected by the statute on the ground that it

infringed upon liberties guaranteed them under the Privi-

leges or Immunities Clause.  A sharply divided Supreme

Court, in an opinion by Justice Samuel F. Miller, upheld the

statute, declaring that the amendment protected only the

privileges and immunities of citizens of the United States--

as opposed to citizens of a state.  The Court held that the

former were few and did not encompass such matters as earn-

ing a livelihood, which could be regulated by state govern-

ments.  With that holding, the Privileges or Immunities

Clause became a dead letter.8