May 18, 2020
By Timothy Sandefur
The Georgia Supreme Court this morning reversed a trial court decision that had declared that the right to earn a living is not a right protected under that state’s Constitution. In a unanimous ruling, the justices held that “we have long recognized that the Georgia Constitution’s Due Process Clause entitles Georgians to pursue a lawful occupation of their choosing free from unreasonable government interference.”
The case involves the state’s laws regulating “lactation consultants”—that is, people who help new mothers learn to properly breastfeed newborn babies. In the Peachtree State, you need a government license to do that, believe it or not. That licensing requirement was challenged by a group of lactation counselors represented by our allies at the Institute for Justice, who argued that requiring government permission to help mothers breastfeed is so irrational that it violates the state’s Due Process of Law Clause—a provision of the Constitution that for centuries has been understood as a prohibition on irrational laws. But the trial court threw the case out on the grounds that there’s no such right as economic freedom to begin with.
Along with our friends at the Pacific Legal Foundation, the Goldwater Institute filed a friend of the court brief arguing that not only is economic liberty a constitutional right—a right that courts have recognized since even before Georgia became a state—but that the Georgia licensing requirement is irrational for another reason: It only applies if you charge money. Georgia’s lactation consultant licensing law allows people to teach mothers how to breastfeed if they do it for free, but not if they’re paid. We argued that that is irrational on its face, because if something is so dangerous that a person can’t do it without government permission, then it certainly doesn’t become safer just because a person does it for no money.
Licensing laws that are triggered by the fact that money changes hands are almost certain to be irrational, because that’s typically a signal that the law exists only to protect some group against legitimate economic competition. An exception for free services almost always proves that a regulation is irrational.
Today’s decision didn’t address that question but sent the case back to the trial court to consider it. In the meantime, the decision is an important vindication of a too-often ignored principle: Economic freedom is (in the words of U.S. Supreme Court Justice William Douglas) the “most precious liberty” we possess.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.