by Timothy Sandefur

Imagine you’re being tried for a crime you didn’t commit. Your lawyer, Ben Matlock, manages to prove that you didn’t commit the crime, someone else did. As the courtroom audience murmurs its astonishment and Ben goes back to sit down, the judge bangs the gavel. “Yes,” he says, “it’s true you didn’t actually commit the crime. But I can imagine a way in which you could have done it. Therefore, I find you guilty.”

Absurd as that sounds, it actually is how the law works in cases involving the right of an individual to earn a living at an ordinary business, such as simply braiding people’s hair. And in a decision from the Eighth Circuit Court of Appeals today, the courts have been given carte blanche to invent their own justifications for rules that arbitrarily deprive entrepreneurs of the right to earn a living—a right Supreme Court Justice William Douglas once called “the most precious liberty that man possesses.”

Here’s how it works: Courts nowadays typically divide individual rights into two categories. There are rights they care about—such as free speech, or freedom of religion, or freedom to travel—which receive strong legal protection known as “strict scrutiny,” and there are rights courts generally don’t care about—such as the right to earn a living, and the right to private property. These rights receive the lowest level of legal protection, called “rational basis scrutiny.” Under that rule, the government may restrict your economic freedom, your property rights, or other disfavored rights, almost at will. So long as the government might have believed the restriction is a good idea, it’s constitutional.

There’s nothing in the Constitution to support this discriminatory treatment of your freedoms—quite the opposite. The Constitution’s authors regarded economic freedom and property rights as essential to a free society. But thanks to precedents dating from the 1930s, courts have largely turned their backs on these rights, allowing bureaucrats to override these critical aspects of liberty basically whenever they like.

Worse still, under an extreme version of the “rational basis” test, judges are encouraged to concoct their own justifications for restrictions on these disfavored rights, even if the government never actually had any such thing in mind when it acted as it did. For example, suppose the government forbids you from working as a bricklayer because lawmakers thought bricks were not strong enough as a building material. That would be silly—but courts would probably allow it, under the lenient “rational basis” rule.

But now suppose you filed a lawsuit to challenge this rule as a violation of your constitutional right to earn a living and proved beyond a doubt that bricks are strong enough to make buildings out of. You then ask the judge to rule in your favor—and the judge says “Well, you’ve proven your case. But I can imagine a hypothetical world in which the government thought that bricks cause cancer. True, it actually did not do that—and there’s no evidence to show that. But because I can imagine such possibility, I will allow this law to stand.”

That’s basically what happened in the case of Ndioba Niang and Tameka Stigers, who sued over Missouri’s rule that prohibits people from braiding hair unless they get barber licenses—an expensive and time-consuming prospect, and one that makes no sense, given that Niang and Stigers don’t engage in barbering. They don’t cut hair or use chemicals—they just braid hair. They proved in court that these requirements made no sense—but the judge upheld the law anyway, on the theory that the Missouri legislature might have thought the rule would encourage broader knowledge of African hairbraiding techniques and possibly encourage barbers to offer a broader array of services. Again, there was no proof of this—the judge simply made it up.

They appealed, and we filed a friend of the court brief supporting them, and arguing that the court should not blindly rubber-stamp the government’s restrictions on this important aspect of individual freedom. But in today’s opinion, the Court of Appeals upheld the law, and declared that the trial judge was right to invent his own rationalizations for the law: “The braiders object that the district court cannot offer justifications,” it wrote. “To the contrary, courts are not bound to consider only the stated purpose of a legislature. The braiders have the burden to negate not only the State’s justification, but also every conceivable basis which might support it.”

Under that rule—a rule that allows judges to make things up in the middle of a trial—it’s hard to see how the Constitution can really have any force. That’s why the Supreme Court has sometimes said that that is not how the law should work. It has sometimes said that judges should not invent their own justifications for laws, and that the rational basis test is not “toothless.” But the Eighth Circuit Court of Appeals has here given its blessing to a hall-of-mirrors legal theory that lets judges extract what teeth the rational basis test might have had.

The consequence isn’t just an illogical legal rule that forces citizens to prove a negative in order to exercise their right to pursue happiness—it’s also that expanding government’s ability to restrict economic growth for no good reason encourages cronyism and hampers economic opportunity for people with little political influence. As our own Mark Flatten observed in his report, Protection Racket, licensing laws like the Missouri anti-braiding law make it harder for ordinary citizens to earn a living—simply in order to enrich those with greater political influence. It’s long past time for that to change—and for our legal system to seriously protect all of our freedoms.

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