by Timothy Sandefur

Yesterday, the Goldwater Institute filed a friend of the court brief in the Pennsylvania Supreme Court urging the justices to keep in place a rule that protects the rights of Pennsylvanians better than the federal constitution does. That rule is the “rational basis test”—the tool judges use to decide whether a restriction on a person’s economic freedom or private property rights is constitutional. Federal courts use that test also, but the federal version is so deferential to the government that it hardly ever results in protecting individual rights. In fact, federal courts using this test often simply make up justifications for upholding laws, even if those laws are plainly absurd.

But the Pennsylvania version of this test holds that a restriction on economic freedom is unconstitutional if it is “patently beyond the necessities of the case.” And that’s what the plaintiff in the case, entrepreneur Sally Ladd, argued. She started a small business to help people rent out their properties through home-sharing. But state officials decreed that illegal, unless she first gets a real estate broker’s license. Getting such a license wouldn’t help protect the public, of course—she’s not practicing real estate brokerage, for one thing—and it would be extremely burdensome on her. So, represented by our friends at the Institute for Justice, she filed a lawsuit to vindicate her right to earn a living.

Unfortunately, the trial court threw the case out, ruling that so long as the government merely says that the law protects the public, that’s enough—even if nobody has introduced any evidence. She’s appealed, arguing that the judge should at least have let her prove facts to support her argument. In our brief, we argue that she’s entitled to her day in court precisely because Pennsylvania courts have never embraced the anything-goes version of “rational basis” that federal courts use. And, citing sources from William Penn to Benjamin Franklin, we show why Pennsylvania’s constitution, especially, should provide meaningful protections for people trying to earn a living.

Read more about the case, Ladd v. Real Estate Commission, here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.