May 6, 2019
By Timothy Sandefur

My new article, “Rebuilding the Fourteenth Amendment: The Prospects and the Pitfalls,” has just been published in the NYU Journal of Law & Liberty. I take a look at how far we’ve come in vindicating the constitutional right of economic liberty—and the obstacles that still remain. The biggest of these, I argue, is the pervasive prejudice against economic commerce in the legal community:

Henry David Thoreau once said that “[t]rade curses everything it handles.” It is at least true that under the prevailing post-New Deal jurisprudence, trade diminishes the legal respect accorded to virtually anything. This makes no sense…. “[T]he market does not transform what were permissible acts into impermissible acts” or vice versa…. [Yet] the presence of an economic transaction is a convenient point at which to qualitatively deprive that choice of constitutional security…. The prevailing prejudice against economic exchange is so strong that even rights that under the post-New Deal settlement ought to enjoy the highest degree of protection deteriorate in the presence of trade…  I call the jurisprudential habit of treating rights differently in the presence of a commercial transaction “the Trade Trigger….”

[T]he presence of an economic transaction is often used as a trigger, particularly occupational licensing. In many states, activities that are prohibited without a license are nevertheless allowed if the person engaging in it receives no compensation. This alone should fail the rational basis test, since if an activity is dangerous enough to the public health, safety, and welfare that it must be prohibited to anyone who lacks a government license, then it must also be so dangerous that unlicensed persons should be barred from doing it for free. It is irrational to say, for example, that blow-drying someone’s hair may be safely done without a license so long as a person does it for no money, but that blow-drying hair for money is so dangerous that it must be banned without government pre-approval.

I also discuss some of the avenues for future reform: Lawyers will have to resolve what, if anything, really violates the rational basis test, and what constitutes a legitimate government interest; will have to apply the rule against vagueness to civil as well as criminal law; and will have to accept the fact that the Constitution is a pro-liberty document. And I discuss some of the bad ideas now circulating in the libertarian/conservative legal community, particularly the effort by some to abandon the theory of “substantive due process” and to replace it with a finite list of rights protected by the Privileges or Immunities Clause:

The bottom line is this: the attack on Substantive Due Process is fundamentally an argument for judicial deference—which is to say, for judicial abdication—even if it accompanies a willingness to revive the Privileges or Immunities Clause. Advocates of liberty should refuse to participate in that.

Why is this so important? Consider that in the light of history, our law with regard to privacy is in a bewildering and perhaps untenable state. No society before ours has ever regarded religious beliefs and sexual matters as being purely private affairs into which the government may not intrude. The reason is that every society before ours believed that there are consequences to society from a citizen’s private religious or sexual relations—something it is impossible to deny. The difference—and sole defensible basis for the difference—is that no society prior to ours had a conception of the natural rights of the individual. That revolutionary idea lies at the heart of our Constitution. All alternatives to it, no matter how sophisticated they may appear, are variations on the same ancient theme which the Constitution’s authors rejected: namely, the notion that individuals have only such freedom as those in power choose to give them. That idea lay at the heart of what I have called “permission societies,” and unless abandoned, that idea will inevitably lead to our nation abandoning its commitments even to those aspects of freedom we might blithely assume to be safe and sound today, including religious and sexual privacy. It certainly can happen here. It has happened virtually everywhere else.

Read the rest here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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