• Timothy Sandefur, The Right To Earn a Living: Economic Freedom and the Law, Washington, D.C.: The Cato Institute, 2010, 359 pages, $25.95.
Is there a right to earn a living? Most Americans would answer, “Of course there is, but … .” Following that “but” you would get a long list of exceptions and qualifications that whittle away at the right, such as “but the individual must have a license as required by law,” “but only if he charges reasonable prices for his work or goods,” or “but he is subject to regulations that protect the public interest.” Pile on enough of those restrictions and the right dies the death of a thousand cuts.
Attorney Timothy Sandefur’s book demonstrates that the right to earn a living is succumbing to that fate. The constant encroachments of statutes, regulations, and court decisions has altered the legal landscape to the point where it is more accurate to say that we may ask for permission to work and engage in commerce than that we have a right to do so.
The book is dedicated to two men who fought against that trend — the 19th century Supreme Court justice Stephen Field and the late 20th century law professor Bernard Siegan — and it sets forth the many fronts on which “progressives” have been and are waging war against economic liberty. The problem is, Sandefur explains, those people really do not think that there are any rights to economic freedom. They demand a society in which presumably benevolent experts decide what people may and may not do. Freedom would get in the way of their plans for controlling society and achieving their visions, so we must have a an extensive system of controls, backed up with fines and punishments for individuals with the temerity to defy the authorities.
Sandefur’s philosophy puts him in direct and heated conflict with most contemporary legal scholars. “These academics,” he writes, “have forged a consensus view that economic liberty was, in fact, concocted by ideologically biased 19th century judges who acted as a de facto arm of the capital owning class.” That notion is accepted widely by most law professors and judges; they believe the nation’s turn away from laissez-faire, property rights, and freedom of contract was all for the good. Sandefur mounts a vigorous defense of the above and an assault on the morality and utility of our regulatory regime.
As an excellent example of the ignorance (or perhaps venality) that advocates of liberty are up against, consider a comment made by now-retired Supreme Court Justice David Souter about a 1932 decision, Adkins v. Children’s Hospital. In Adkins, the Court declared unconstitutional a District of Columbia law that imposed a minimum wage for women. One of the plaintiffs, Willie Lyons, had been employed happily as an elevator operator, but after the enactment of the law, the hotel that employed her would have had to more than double her wages to comply with the law, a law that was supposed to help working women. Instead of getting higher pay, she lost her job. The court correctly ruled that the law unconstitutionally interfered with freedom of contract.
Looking back at Adkins, however, Souter opined that the case “bore the echo of Dred Scott” — the infamous case holding that a slave who was taken into a territory that did not allow slavery nevertheless remained a slave. Comparing a decision upholding the coercion of slavery with a decision protecting the freedom of contract would be an absurdity for a high school student. For a Supreme Court justice, it is incomprehensible.
Sandefur points to the progressive legal philosophy that courts should defer to the judgment of legislatures when laws involving “mere” economic freedoms were involved. Beginning during the New Deal era, justices decided that they should never second-guess politicians if those politicians decided to take away economic liberties that people long had enjoyed. The justices said that they must defer to the will of the legislature when it came to issues involving freedom to work, produce, and trade.
Thus was born the constitutionally dubious doctrine that (adverting to Orwell) some rights are more equal than others. Specifically, courts were to give “strict scrutiny” to rights the justices thought “fundamental” (such as voting), but give other rights only minimal scrutiny, which meant that the law would be upheld as long as the politicians might have had some rational basis for favoring it. Sandefur takes us through a nasty thicket of cases that demonstrate the baleful consequences of the idea that economic liberties are not really important and can be left to the tender mercies of politics.
Much of the damage that has been done to economic liberty has occurred due to the legal evisceration of the right to freely enter into contracts and have them upheld. A contract is a voluntary agreement that is legally enforceable. The trouble is that — even though the Constitution explicitly bars states from enacting laws that impair contracts — legislatures and courts often decide that contracts won’t be enforced if they think it would be unfair or undesirable to do so.
Sandefur covers the waterfront in this comprehensive book, including the use of zoning to prevent people from engaging in business, antitrust law to slam businesses that compete too successfully, the abuse of tort law, occupational licensing, regulatory takings of private property, and much more. Along the way, he repeatedly spars with and batters famous legal scholars like Roscoe Pound, Oliver Wendell Holmes, Robert Bork, Laurence Tribe, and Cass Sunstein. I strongly recommend The Right to Earn a Living for both its careful legal scholarship and its refutation of the notion that economic liberties are less important than others.