 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Our guest today is Timothy Sandifer. He's principal attorney at the Pacific Legal Foundation and heads the Foundation's Economic Liberty Project. He's the author of, among many books, The Right to Earn a Living, published by the Cato Institute. Is there a right to earn a living? I mean, we look at the Constitution and it mentions various rights that we're all familiar with, free speech and religion and so on and so forth, but we don't see the right to earn a living mentioned anywhere in it. That's true, but the Constitution protects the right to liberty and liberty, of course, is a very broad concept. It includes all sorts of freedoms and, among other things, it includes the right to use your skills in providing for yourself and for your family and earning a living, of course, is one of the rights that under the American and English common law traditions has been protected for centuries. The founding fathers were very familiar with legal precedents from British history that protected the right to earn a living. And, of course, another phrase in the Constitution, the privileges and immunities clause of both the Constitution itself and of the 14th Amendment, preserve the freedom to earn a living. So, yes, the right to earn a living is not just a constitutional right, but Justice William Douglas once called it the most precious liberty that man possesses. Well, this clearly doesn't mean that I can sell drugs or prostitution. It's not really describing that. It's not an absolute right. It just means that you have some protection from government encroaching on some things, but not everything. Well, I would dispute that it doesn't protect your right to sell drugs, but it protects your right traditionally. The right to earn a living has been held to protect your right to trade fairly for others consensually for what they're willing to pay you in exchange for what you're willing to sell, subject to regulations that are designed to protect the public health, safety, and welfare. And so you can't sell adulterated products with a fraudulent label, for example, or you can't sell dangerous products without warning people of it. You can't sell stolen items, things like that. But it does mean that you have the right to trade your labor to an employer or to make products and sell the fruits of your labor and keep the earnings that you make without unreasonable interference from the state. This right in my book, I go back in the common law history to really Shakespeare's day. The 17th century was really the time when this right really came to be articulated most explicitly in the English common law system. And what the common law judges, particularly Lord Edward Cook, who became Chief Justice under King James I, what Lord Cook and his colleagues were articulating was the right to be free from royal monopolies or from the interference of trade guilds that wouldn't allow you to practice a business without permission from that guild. So, for example, one of my favorite cases is the case of the upholsterers in which a man tried to practice a trade of upholstery without having the permission of the upholstery guild. And he was brought up on charges for it. And Lord Cook was presiding as Chief Justice at that time. And of course, he says to the guild, well, why do you have to have a license to practice upholstery? And of course, the guild doesn't say the real answer, which is we want to restrict the trade of upholstery so as to raise our prices and extract more money from consumers who have fewer choices. No, of course, what they said was, well, it protects the public. From what? Right? From bad upholstery. And so Lord Cook said, no skill there is in this for a man might learn it in seven hours. And then in one of my favorite lines from any court opinion, he said, unskillfulness is sufficient punishment. If you're bad at your job, that's punishment enough. There's no reason for the government to get involved. That opinion and many like it were the foundation of the anti-monopoly tradition of the 17th century that the founding fathers were familiar with. They grew up as law students reading the law, studying for the bar people like Thomas Jefferson and John Marshall. And they read Lord Cook's books about the law. And they learned about this tradition of the anti-monopoly tradition, which rested on the right of every British subject to earn a living with that unreasonable government interference. But okay, but all of us in this room are earning a living and most of the people that we know are earning a living. And the people who are not earning a living, if we look at why, it's because they're having trouble finding work. We don't see the government saying, no, you're not allowed to get a job. So how is this right being violated today if it is being violated? In fact, there are great many people who can't get a job because the government says they're not allowed to. And then particularly this is done through occupational licensing and other kinds of licensing requirements. So for example, you aren't allowed to, not just people think lawyers, doctors, that sort of thing. That's what they think of when they think occupational licensing. But in fact, something like two-thirds of the American workforce now needs the government's permission before they're allowed to practice their jobs. Everything from hairstylists to nail salons to pest control workers. And some of them are truly absurd, like the Louisiana law that requires you to have a license to practice the trade of being a florist, for example. Well, we've got to protect people from really bad flower arrangements. From ugly flower arrangements. Absolutely, yes. We're not kidding. That really is the law. The law said it was recently amended, although it's still on the books. But at the time that this case occurred in 2005, the law said in order to get a license as a florist, you had to pass a test where you were graded on the beauty of your floral design. So it really was a law to prevent you from selling ugly floral arrangements. To protect the public? I mean, that's crazy. And yet, because courts have, for the past half-century or more, turned their backs on the importance of economic liberty as a constitutional right, those kinds of laws do bar a great many people from earning a living. And they do so in a number of ways. It's not just that people don't have the required training or experience. It's also to pass the test, you have to pay a fee to take the test. The tests are sometimes administered only once a year, or they're administered in inconvenient places. So if you're going to take the test to be a florist, you have to drive to the city where they're administering the exam, and you have to stay overnight in a hotel. Now, you know, you and I can afford that sort of thing, but the kind of person who's looking for an entry-level job as a florist, that's a significant chunk of change, you know. Plus, even worse, there are laws in the books to prohibit people who have been convicted of crimes from obtaining occupational licenses. Even when those crimes have nothing whatsoever to do with the business at hand. If you've been convicted of any felony, you are barred from businesses like, in some states, you're barred from running a moving company, or working for a moving company, if you have been convicted of any felony. Even if the felony was, I don't know, carrying a gun in a place you're not supposed to, or something like that, that has nothing to do with moving. Well, these entry-level jobs are the place where people with criminal records can go to have a second chance in life. And so we're pulling up the ladder for the people at the bottom rungs. So, yes, I think the government does often bar people from economic freedom. You mentioned that this is – we already talked about you for 100 years or so. You mentioned that they've been ignoring it. Let's go back a little bit to the founding era. Was it the case that – so we had cases like Dr. Bonham's case and things like this in the 17th century, but was it the case that there were right to earn a living cases being adjudicated in the 1820s, for example, where people suing about this? In the 1820s, you started seeing them, yeah. But before then – so the period of colonial history, there aren't a lot of cases that I found on the subject. And that's – there are a couple of reasons why. One was there was no guild system in the United States in the American colonies, where there was in England. And so these issues didn't arise very much. Secondly, these disputes during the revolutionary era, restrictions on economic liberty, liberty did play a central role. So, for example, Thomas Jefferson's summary view of the rights of British America, which was the pamphlet he published that got him the job of writing the Declaration of Independence. In the summary view, he complains, among other things, about English laws that prohibited the colonists from manufacturing retail items out of iron. The law said that the colonists could mine iron and then had to send it to Britain to be made into items for sale in the retail market. And he says in the summary view, he says this law is intended to support not men but machines in the island of Great Britain. And what he means by that is this law isn't to protect the public, this law exists to protect the jobs of those iron workers in Great Britain who didn't want to compete economically, didn't want to compete fairly against workers in the colonies. So yes, these issues were around at the time. And the first very really famous case on the issue of economic liberty, of course, is court field versus courier, all the decision by Justice Washington, which I believe was at 1829. 1828, I think. Yeah. And that was a question, the case is actually only tangentially. It touches on the right turn of living. But he goes off and... It has to do with fishing, right? Yeah, it was harvesting oysters. Harvesting oysters. And the question was whether a person in one state had a right to harvest oysters in another state. And this was Bushrod Washington who was George Washington's grand-nephew. Yeah, that's right. And was a justice on the Supreme Court, but he was riding circuit. So he was serving at a lower level at this point. Yeah, as a trial judge. Yeah. And he says, actually he ruled against a plaintiff. He said you don't have that right to fish in other waters. But he said in a very famous passage in that opinion, he says, what rights are protected by the privileges and immunities clause of the Constitution? It includes the rights, among other things, to economic freedom. And of course, the reason he said that was because the Articles of Confederation had also included a privileges and immunities clause, which was in turn based on the Magna Carta's protection of the right of tradesmen to cross boundaries. So you see this right of economic liberty is a traditional right that was time and time again asserted when constitutions and bills of rights were written. And then we get up to the Civil War and the passing of the 14th Amendment, which often remind people that slavery is many things, but one of the things it is is a systematic denying of your right to earn a living with other things to it, but that's a big part of it. And they try to fix slavery with the 14th Amendment and in other privileges or immunities clause. So you talk a little bit about what happened in the late 1860s. Well, nobody has more beautifully put this point than Frederick Douglass himself an escaped slave who in his memoirs writes about this beautiful passage, just amazing, where he talks about after he escaped from slavery into Rochester, New York, and he was looking for a job. He was walking down the street and he saw a bunch of coal that had been delivered by the coal delivery company. And back in those days, you would get coal delivered to you and they would just shovel it out on the sidewalk and you had to then put it into your basement somehow. And so people would get jobs shoveling the coal down the coal chute into your basement. So he saw this pile of coal and he knocked on the door and he asked the lady inside if he could, you know, shovel the coal into her basement and she said yes and he did it. And he says in his memoirs, he said, to understand the feeling which clutched my heart when I held the two silver half-dollars, realizing that it was mine, that my hands were my own and could earn more of the precious coin, one must have been in some sense himself a slave. And that reason I love that passage so much is it really articulates the deep connection between economic liberty and personal autonomy, the sense of freedom that he was trying to express, came in the form of having earned money to provide for his own food, for his own shelter and it was to protect that right that the Fourteenth Amendment's privileges or immunities clause was added. And I always want to emphasize this, the Fourteenth Amendment is one of the great achievements in human liberty. It's unfortunate that in recent years we've heard a large number of people complaining about the Fourteenth Amendment and saying that it was somehow an infringement on states' rights and so forth. The Fourteenth Amendment was a great accomplishment in freedom and one reason why is because it protects you against the power of your own state, which had not been done before, and among the rights that it was intended to protect was the right to earn a living. And that's – I always – Expressly referred to in the debates around writing and ratifying that amendment. Absolutely. Before the Fourth Amendment there was no floor to the states, right? It established a floor below that they didn't give themselves. They could have had their own bill of rights, but there was no floor that they couldn't go below. But what happens in the Slaughterhouse cases? Well, of course, the Slaughterhouse case was the first opinion from the Supreme Court interpreting the Fourteenth Amendment, 1873, and the court was asked to review a Louisiana statute that established a monopoly in the butchering trade. It said that if you wanted a slaughter cattle in New Orleans, Paris, you had to do it at a single privately owned slaughterhouse that just happened to be owned by members of the Louisiana State Legislature. What a coincidence. It's always Louisiana. They're nuts down there. Not much has changed. They also have the highest prison population. All those unlicensed butchers. Exactly. Well, of course, this law – an analogy would be if the State of California were to pass a law that said all automobiles in Los Angeles County have to be repaired at the Amco on Vine Street, right? And so it put hundreds of butchers out of business overnight. They filed a suit saying – Yeah, there's a ton of cases. 125, I think, put together by the time – Yeah, that's why it's the Slaughterhouse cases. Yeah, the entire list of them is huge. And it got up to the Supreme Court and the question was, we have a right protected by the Privileges or Immunities Clause of the 14th Amendment to earn a living without interference by unreasonable government monopolies. That right had been protected for, at that time, 275 years. And this state law established as such a monopoly it therefore violates the 14th Amendment. It's a pretty clear logical argument. And the Supreme Court said no. And the reason behind that was the Supreme Court said they could not imagine that the 14th Amendment was really intended to have the federal government protect civil rights against states. Therefore, that can't be the right interpretation of the 14th Amendment end of story. That was really what the Slaughterhouse says. It's an amazing opinion to read. They could have just gone and asked them. They could have just gone to Bingham and asked them, right? It was five years ago they had passed it. That's right. And there's no reference in the opinion to the debates about the 14th Amendment. Anyway, unfortunately, that case remains on the books today. And so the Privileges or Immunities Clause has essentially never been enforced. Out of curiosity, are you still limited in where you can slaughter cattle? In Louisiana. Well, probably. But there is actually an interesting footnote to that. About five years later, Louisiana held a constitutional convention and as part of that convention, they eliminated the Louisiana Slaughterhouse monopoly. And so the owners of the Slaughterhouse monopoly sued the state of Louisiana saying they were being deprived of their right to the monopoly that they had been given. And that went to the Supreme Court and my hero, Justice Stephen Field, the first Californian on the U.S. Supreme Court who wrote the lead dissent in the Slaughterhouse cases, took the opportunity of that case, which is called Butcher's Union versus Crescent City livestock landing in Slaughterhouse Company. He took the opportunity of that opinion to rail on again about how the Slaughterhouse cases had been wrongly decided. So no, actually, that Butcher monopoly was repealed shortly thereafter, but unfortunately it didn't overturn the legal precedent. And after that, so now the privileges are made to these clause is kind of a dead letter. It gives you some important rights, though, such as the right to navigate in federal waters. Here's an interesting thing about that. I think that most of the legal world is a little confused about the Slaughterhouse cases. The Slaughterhouse case has been overruled. It's just nobody realizes it yet. Slowly. No, it already has been. Yeah, you're right. Gradually it was overruled and people haven't realized it because what has happened was the Slaughterhouse court did not deny that the right to earn a living is a constitutional right. They admitted that. What they said was that federally protected civil rights are a very limited number of rights, such as the right to travel on the high seas and that federal civil rights had not been entrusted to the federal government for protection. Well, the Supreme Court has said otherwise not just with regard to equality rights or voting rights. The federal Supreme Court has over and over again said that economic liberty is a right that the federal courts will protect against state interference. They say that to this day. So that part of Slaughterhouse, which is really the important part, has actually been abrogated and it seems like nobody has realized it yet. I don't understand why. Well, I think that they just sort of bemoaned the fact that it could have been easier than doing a piecemeal with the due process clause over the course of many years. But the Slaughterhouse were in 1873 and then we get to working on creating this floor again for the states via the due process clause, which was not really the best way of doing it. But then we get to Lochner. Yeah. Now, briefly, I'll say a lot of people say that the due process clause was used as a substitute for the privileges or immunities clause in the years that followed. And I disagree with that. I think that first of all, the first substantive due process case was loan association versus Topeka, which was in 1874. So it was only a year after Slaughterhouse. You wouldn't say that Dred Scott was a substantive due process clause. Well, only in the sense that substantive due process is an inherent part of almost every judicial review case and that substantive due process has been around since the Magna Carta in 1215. The due process clause protects your right to be free from arbitrary deprivations of liberty, whether it's a procedural deprivation or a substantive deprivation. The idea of separating substantive and procedural due process is incorrect. They are the same thing. And what the courts did was it's true. They stopped enforcing the privileges or immunities clause and they laid more emphasis on due process. That's not – it wasn't a replacement. It's just that after Slaughterhouse they were left with nothing other than the due process clause and they correctly enforced the due process clause in cases like loan association. That's a little bit technical, though. What happened then was between the 1870s and 1900, the court started protecting more and more the right to freedom of contract against state interference. A lot of people say, the Supreme Court got so activist in those years. Well, that's because the 14th Amendment had just been added. So only now were the federal courts in the job of protecting people against their states. Anyway, in Lochner, that was a case in 1905 in which the Supreme Court said that the state of New York could not prohibit people from working 10 hours a day in a bakery if they so chose. The state had passed a law that said you weren't allowed to work 10 hours a day and this man named Amon Schmitter, he was a German immigrant who worked in a bakery in Utica, New York. He went to his boss Joseph Lochner and he said, I'd like to work more than 10 hours a day and Mr. Lochner said, I'd like to pay you to work more than 10 hours a day. So they shook their hands and there you go. That's it. Two grown adults who have the right to do with their own bodies what they please and it ain't nobody else's business if they do. And yet they were brought up on charges for this. Well, they also intended to break the law. Of course. And then went to say, go report me. He seemed like an interesting guy because he had been a sort of a bug to the annoyance to the unionized butchers for a while. Yeah. It's a very interesting case. For one thing, the lawyer who argued against the constitutionality of the Bake Shop law was a guy who had previously been a union activist who had been the leading proponent of the Bake Shop law. Anyway, in the Lochner case, the Supreme Court said no, people have the right to earn a living without unreasonable interference. The government can restrict that economic freedom in order to protect the public but there's no reason to believe that working more than 10 hours a day in a bakery is bad for the public or bad for bakers or bad for bread or anything like that. It really is just a meddlesome interference in a person's right to decide what kind of job to take, what kind of hours to work, what kind of wages to earn. And if the government's going to restrict that then it can get involved in every aspect of our economic freedom and that's intolerable. Therefore, you know, deny it. Which is exactly right. It's kind of like when you mentioned the imposterous case because there's another line in that opinion where he kind of says, well, this is just baking bread. He said it takes seven hours to learn. This is just baking bread because they had dealt with miners, right? M-I-N-E-R-S. And said the work hour restrictions on them was okay because this is mining. Which is dangerous work and hazardous to your health and so forth. So of course the court recognized that the government has a legitimate role in protecting people against dangerous or dishonest business practices. But if it's just an ordinary trade, then people have the right to decide for themselves. And another case that followed in those footsteps, one of my very favorite, is a case called Adkins v. Children's Hospital in the 1920s in which the court struck down a minimum wage law that applied only to women. And that was located here in District of Columbia. Now what's going to happen if you pass a minimum wage law that applies only to women? They're not going to get any jobs. Yeah, all the jobs are going to go to men. Which is why the male-dominated trade unions supported these kinds of laws. Willie Lyons, who ran an elevator in a Washington, D.C., hotel, liked her job, earned less than the minimum wage, lost her job because of the minimum wage law. She sued and said, hey, I have the right to earn a living how I choose. The government doesn't have any right to come in and tell me that I can't be employed at the wage that I'm willing to accept. And it went up to the Supreme Court. It's a very interesting case. It was written by Justice George Sutherland, who was an early advocate of female suffrage. And he based his opinion on the 19th amendment. He said, maybe there was a time when women were too weak or dumb or incapable of making economic decisions for themselves. But with the ratification of the 19th amendment, we've recognized women as equals and they have the same right as men do to earn a living and make those kinds of decisions for themselves. Let me ask a question about Lochner's legacy because when we talked about it here and when you described it, it was like this case was, yeah, they just did the right thing. The court stuck down the silly law and we're good to go. But this case in – when I was in law school and when Trevor was in law school, you know, this case is perhaps second only to Korematsu, the case making it okay to lock up Japanese people doing that work, too. Maybe, but it might be tied, yeah. Maybe as far as just being despised by law professors, they think that there's like almost nothing more evil than the Lochner decision, which is quite a different reaction to it than you just had. So what's going on there? Before we get the answer to that, I want to – going back to the substance of the case, Aaron, when we were in law school together, had a line about Lochner that I think you said to your class and I use it when I talk about it now, which is I always say, you know, because you're always debating your classmates on this because they think it's so bad. And you say, you know who really needs a maximum work hour or weak law? Lawyers. I mean, everything about lawyer, like the drug abuse rates, the divorce rates, the health problems work in eight hours a week and every time you tell lawyers out, they say, well, no, no, we don't need protection, but bakers, of course do. That's a good point. And they hate Lochner so much. As he said, so why is the hatred so – Well, what happened in the Lochner era? Yeah, Lochner became a lightning rod for progressives who wanted to argue for a radical reinterpretation of how constitutional liberty ought to work. They argued against the concept of natural rights, rights are just permissions that the state gives to us instead. They argued against constitutionally limited government. Government ought to be in the business of adjusting our lives so as to make them better in basically every conceivable dimension, making them more moral and just and happy and full. And courts really shouldn't be in the business of restricting democracy. The democratic process should basically have its way across the board. And that means that the courts should stand back and whether the constitution allows it or not. The constitution is a living document. And so it should – it changes to meet the changing needs of the day. Well, Lochner stands obviously in opposition to all those things. It says that there are certain fundamental aspects of freedom that cannot be justly infringed by any legislature. And when the legislature does infringe those rights, it's depriving us of liberty without due process of law and the courts ought to intervene. So Lochner became very clear for that. But really the reason why Lochner became such a symbol was Holmes's dissenting opinion. Justice Oliver Wendell Holmes who said, all my life I have sneered at the natural rights of man. He really meant it. He did not believe that there was such a thing as justice. There was only force and basically random personal tastes about what is just and not just. And so in his opinion he argues that the idea of liberty – this is a quote – the idea of liberty is perverted when it is used to prevent the outcome of a dominant opinion. Now it's hard for me to imagine what the word liberty could otherwise mean other than to prevent the outcome of a dominant opinion. But Holmes – he viewed the democratic process as a process where people of, quote, fundamentally differing views and, quote, could hash out what is just and unjust. And therefore if the majority decides that bakers should work no more than 10 hours a day, it ain't nobody else's business if the democratic process restricts their freedom. And so he basically turned that opinion, which by the way – his dissenting opinion in Lochner is a masterpiece of dishonesty and falsehood. There's basically not a word in it that is correct. My favorite in there is when he says that a constitution is made for people of fundamentally differing views. That proposition flies in the face of every word of political philosophy written since Aristotle's day. You cannot have a constitution for people of fundamentally differing views. You have a constitution among people of fundamentally shared views who might differ on the particulars. But they agree on the fundamental precepts of justice and liberty, but not for Holmes. So Holmes' opinion in that case became a manifesto for people who wanted the state to grow far beyond what the constitution previously had allowed in order to accomplish the goals of social justice, as they called it, which is to say in order to restrict freedom to what the political elites thought was acceptable and appropriate. And so Lochner became famous for that reason rather than what it actually held, which is a relatively minor and rather routine opinion. And in fact, not even really symbolic of a consistent laissez-faire ideology on the court as David Bernstein has pointed out in his book. The courts at that time actually supported a large number of restrictions on economic liberty, particularly restrictions on the rights of women, which were overturned in the 1920s. Well, versus Oregon. Yeah. But wait three years after it, they unanimously, if I think, upheld Work Hours Law for women in Muller versus Oregon. So it was almost the exact same court. So everything about the Lochner era is highly overblown. The idea that they just struck down good social legislation left and right. I mean, some of the stuff they were striking down was, as Tim said, minimum wage hours just for women. And you often hear it said that during the Lochner era, the court protected economic liberty out of an economic ideology. Well, when you read those opinions, there's not a word of economics in there. I did the search. There's maybe one reference to Adam Smith in one of these opinions. But these cases are not about economic liberty. Justice Sutherland never – I mean, about economic ideology. There's not a word in Justice Sutherland's opinion in Adkins, for instance, about economics or supply and demand or anything like that, even though he could very well have made a good argument on those points. Instead, it's all about freedom and the freedom of choice. These are moral and political philosophical points. That's what it was about. It's about the liberties of the Declaration of Independence, not about supply and demand curves or anything like that. And when we get up to the New Deal and the end of the Lochner era, because the story gets into the point of how do we get economic liberty to be so disrespected? And now we get to New Deal. What happened there that put them on the back burner? And why do you think that is? That's the other thing, too. I mean, that's a disproportion. Why is it that economic liberty is disrespected? And what happened? Well, the New Deal era was the triumph of this political revolution that began slightly before the Lochner opinion was issued. So the Progressive Era – I think I would probably date the beginning of the Progressive Era to the publication of Edward Bellamy's book Looking Backward. 1887. Which was the novel that introduced the phrase cradle to grave. And it was incredibly popular, by the way. Bellamy clubs in every state in the country. And it was a hugely popular novel. Anyway, the Progressive Movement was reaching its adolescence at the time Lochner was decided. And it became sort of the target of everything they were against. And Progressive Ideology boiled and new ideas were being fostered until 1934 in Nebia versus New York when the Supreme Court created the concept of rational basis scrutiny. You had the long sleep of economic liberty as a constitutional right. What – you talk about rational basis scrutiny, which is part of this – there's these different levels of scrutiny that the court uses – that courts use to evaluate laws. Can you tell us what those are before we go into the specifics of the new rational basis? So these are the tests that courts use to determine whether a law violates the constitution or not. They ask these questions about that law. In a case involving strict scrutiny, the court will say, is this law narrowly tailored to advance a compelling government interest? Now that's basically just a bunch of phraseology. What it really means is the law has to be designed in such a way as to accomplish something really important and not do anything else if it's to satisfy this strict scrutiny standard. So no false positives and no false negatives. It has to do something crucial and do it well. A law that – subject to rational basis scrutiny on the other hand, in order to pass constitutional muster, such a law only has to be rationally related to a legitimate government interest. Again, we don't really know what that means. The court itself acknowledged in the 1987 opinion, our cases have not laid out the standards for determining what constitutes a legitimate government interest. So we don't even really know what it means, but it basically means if somebody might have thought it was a good idea, then it's okay. That's what the rational basis test means. It always struck me when we have these sliding scales of scrutiny that they seem weird in light of the language of the Constitution. Yes, they do. Because the Constitution doesn't say – This was really important. Yeah, like Congress shall make no law unless it's got a compelling reason. It says no, period. And so how did we even get to strict scrutiny much less rational basis? Well, the strict scrutiny standard comes from the Korematsu case you mentioned before about the Japanese internment camps. And what the court said was, well, when a law restricts the rights of a particular minority group that might be disenfranchised, we're going to be really skeptical about that law. It makes us really uncomfortable and will only allow it in really rare circumstances. You're right. The Constitution doesn't say constitutional violations are allowed in rare circumstances. In fact, in 1934, the same year as Nebia, there was another case called Home Loan Association vs. Blaisdell. And in that case, the court basically invalidated another important provision of the Constitution, the contracts clause. And in a dissenting opinion, the court, the justices said – In fact, it was just the Sutherland, the same one I mentioned before. It's a great opinion, too. He said, if we don't uphold the Constitution when it pinches as well as when it comforts, then we might as well throw it away. Yeah. And I think that the way I describe scrutiny is often – you always have to evaluate something about what you're trying to do. You can't just pick and whether or not it's accomplishing your goals. And the question is almost like, strict scrutiny says you have to use a scalpel, right, to do something. You have to approach it with a scalpel and say, I'm just going to – I need to take out this thing from this guy and I can only take out this thing. Rational basis says, oh, you can use a sledgehammer. Right. You can just hit the guy right across the chest and try what you do. And if you hurt all the other organs, it doesn't really matter because it's not a very important right. And as I've said, the whole question is confused by the fact that the court has never told us what it means, what a legitimate government interest is. There's been a few cases where they've said some things aren't legitimate government interests, but they've never told us how we even decide what a legitimate government interest is. So it's really, in many ways, a shell game, the entire tiers of scrutiny requirement. But what it means in practice is that if you're going to prove that a law violates the rational basis test, which is the test that the court's because of the Nebia case, that's the test that the court's applied to economic liberty. If you're going to win that case, you're going to prove that the law is irrational. You have to disprove every conceivable basis for the law, which, of course, is completely impossible. Not only is it impossible to prove a negative, but it's certainly impossible to prove an infinite series of possible negatives, but that is what a plaintiff has to do to win such a case. So what happened in Nebia was the court upheld a law that said you weren't allowed to sell milk for less than eight cents a quart. This, of course, was during the depths of the Great Depression. Unemployment was 25%, and the government says, well, here's our solution. We're going to make it illegal for poor mothers to buy cheap milk to feed to their babies. And the Supreme Court said, yeah, that's okay, because if the government wants to regulate the economy, they can do basically anything they want. And that's the law that we live under today. If it comes to certain kinds of preferred rights, the freedom of speech and stuff, strict scrutiny applies, but these freedoms like economic liberty or private property rights are subject to this anything-goes-rational-basis standard thanks to the 1934 Nebia case. So when you're not writing books and appearing on excellent podcasts, you're litigating these kinds of cases. And so have you won against a rational basis? Have you had laws struck down on a rational basis, Tim? I'm glad to say yes. I've won cases under the rational basis test, and it ain't easy. Not long ago, had a judge come out, and before I started to argue, she said, before you start, I just want you to know you have filed more paper in this case than any case I have ever presided over, including patent cases. So, yes, it is not an easy job to overcome the rational basis test. In February of this year, I've won a case in Kentucky challenging that state's law that restricted the moving industry. You're not allowed to run a moving company in Kentucky until you first get permission from all of these states existing moving companies. And this is a law called the Certificate of Public Convenience and Necessity Law, which, unfortunately, is on the books of most states in one form or another. It applies to everything from moving companies and taxi companies to even hospitals have to get permission from other hospitals before they're allowed to open up. And so in order to win those cases, what I had to do was I had to get evidence about every single application for a moving license in the past five years and what had happened in all of those cases and show to the judge that every time a person had applied for a license and an existing company had objected, that person was denied a license. And that the state had even rejected applications from one guy who had been in the moving business for 35 years before he decided to start his own company. He was denied in a written opinion that said, you're fully qualified, but we just don't want more moving companies so denied. So that clearly deprives my client, Raleigh Bruner, a small business owner in Lexington, Kentucky, of his right to earn a living without unreasonable government interference. He's perfectly qualified. The government has no business depriving him of his freedom. And I'm glad to say we won that case in February of this year. Can you talk a little bit going back a little bit on litigating for liberty in that sense what Pacific Legal Foundation is, like how you work, how you find cases, what your strategy is going forward to try and bring those cases just in general for people who aren't maybe familiar with the strategy here. Sure. Well, there are lots of groups out there that litigate to accomplish constitutional goals. The most famous, of course, is the ACLU. Well, in 1973, then California Governor Ronald Reagan said, you know, there ought to be a group out there that does this sort of thing for those of us who believe in free markets and individual liberty. And so that year, Pacific Legal Foundation was founded by three of his staff members. And over the course of the next few years, several other similar organizations were founded across the country. There was Washington Legal Foundation, Mountain States Legal Foundation, various other foundations like that. In the 1990s, of course, there was sort of a second generation of these groups that was founded, including the Institute for Justice and various organizations that focus only on in a particular state or only on a particular issue. A lot of state-based think tanks like the Goldwater Institute in Phoenix and other organizations have lawyers who litigate cases for freedom in their state courts. So it has become really a massive and important part of the liberty movement in this country that we have in addition to the policy organizations, we have these litigation groups. And what PLF does is we have three main areas of focus. Private property rights, we litigate not only cases involving like eminent domain, but regulatory takings when the government prohibits you from using your property as you want to and therefore deprives you of the value of your property. We won a very famous case in 1987 called No One Versus California Coastal Commission, which really laid the groundwork for a lot of these cases. Our second area of focus is environmental law. We litigate a lot of Endangered Species Act, Clean Water Act, Clean Air Act cases, things like that. In fact, just this last month, we won a decision in a federal court in Utah that struck down the listing of the Utah Prairie Dog on the Endangered Species List. Now the Utah Prairie Dog exists only within one state and has absolutely no economic value. Nobody uses Prairie Dog pelts to make coats. Nobody eats Prairie Dog. Nobody does anything with Prairie Dogs. They have no economic value at all. And the district court judge held that because Congress cannot show that there's any effect on interstate commerce for the Prairie Dog that it had no authority to list the Prairie Dog on the Endangered Species List. That is the first case that has ever struck down the listing of a species on the Endangered Species List. Because that came up in the 90s with the what was it, the cave spiders? Oh yeah, there was the cave bugs. Yeah, there's various cases of species that exist only within one area. The Delta smelt is one that's been a big issue in California. It only exists in the Delta area of California. It has no economic value. And Congress only has power to regulate and with foreign nations and with the Indian tribes. And yet it claims to be able to control what anything that affects these species that have no interstate character and no commercial value. Anyway, so we do those environmental cases. And then we are involved in cases about race preferences, affirmative action programs and which violate not only the 14th amendment, but many state laws. California, for example, has a constitutional prohibition on race preferences and we are the only organization that enforces that. The state attorney general has consistently refused to enforce that provision of the state constitution since it was enacted in 1996 and we're the only organization that does so. Then we have certain smaller projects including my economic liberty project where, which is designed to protect the rights of business owners and entrepreneurs against these stupid kinds of occupational licensing laws and so forth. And we have one important case in various states trying to put some teeth back into this central aspect of constitutional liberty. The right to use your skills and your knowledge to provide for yourself and your family. And how do you find your clients? Well, it's not easy. That, in fact, is probably the hardest part of the job is finding clients because, you know, a lot of the time business owners are afraid to take on the powers to be and understandably so because, you know, their livelihoods are at risk. A lot of the time they don't have the resources to do it, which is why we represent people free of charge. But even though it's, you know, the courts system can be very slow and it can take a long time. You know, to ask a person who wants to start a small business to wait for a year, two years for a court opinion can be a hard thing to do. The upside to it is once we win those cases, it sets precedent that protects entrepreneurs for generations into the future. So it's very rewarding. But it is very hard to find cases. People call us or we search them out through, you know, the news stories and so forth. And you're looking for a specific type, he said a plant who is willing to take it all the way, who wants to litigate for principle, who's probably pretty sympathetic, probably helps, is not Donald Trump. Although that is true, I do want to emphasize, we always make it a point to say that although we do defend the rights of businesses and entrepreneurs who don't have the resources to protect their own economic liberty, the right of a rich person to earn a living and to keep the fruits of his labor is every bit as valuable and as important as the right of any poor person or starting out entrepreneur. Rich people and poor people alike have the right to the fruits of their labor and the government has no right to discriminate against people based on how much they earn or how hard they work in protecting some people's rights and then turning their backs on the rights of big businesses. That's wrong also. And as a litigator fighting against these are basically in the economic liberty context, just beating your head against the rational basis test all the time and deposing government bureaucrats asking them why did you do this and they just say do you have a favorite answer of why a government bureaucrat told you that they were doing something because you say why are you regulating the future of decorators? My favorite, I did a case gosh almost 10 years ago now in which my client ran a business a pest control business. He didn't use pesticides and he didn't deal with insects. He put spikes on buildings to keep pigeons from landing on them and put screens to keep squirrels out and things like that. Structural pest control that's called Well, in California you have to get a license. Branch 2 structural pest control operators license. I'm sure you know way too much about the regulations in California. Indeed, I have read the examination and I'm under a court order not to tell you what's on that examination. You have to pass a 200 question multiple choice exam to get a branch 2 license and here's an interesting bit. There's not a single question on there about pigeons and not a single question on there about spikes and it got better because the law only applied if you were dealing with pigeons. It specifically said if you dealt with any other kind, if you put the same spikes on the same building to keep seagulls away you didn't need any license at all. So your mental state really mattered. In fact in one of the depositions we asked how do you know whether the spikes are put on the building to keep pigeons away and not other kinds of animals and he said well we investigate. I said do you ask the person who puts the spikes on the building? No. Anyway, no my favorite part of that deposition was we deposed a state's expert witness who was an expert on pest control work and I said to him now this law requires 2 years of training to put spikes on a building to keep pigeons away. He said yeah, that's right. I said but no training at all to put the same spikes on the same building to keep seagulls away. He said yes, that's right. I said would you call this irrational? He said yes I would and the government's lawyer says can we take a break? He just admitted it right there. Comes back from the break he says verify what I said about irrational and he said what I meant to say was it might seem irrational but here's what happened originally you needed a license for all pest control work and then we said well some people were saying well if you're not using pesticides you're not a threat to the public so why should you have to get a license? So they were going to get rid of the licensing harm and those of us who already had licenses we didn't want to face competition against people like your client and so we said well why don't you divide up the market and we can keep the pigeons, the rats and the mice because they're the most common pests and those other people can deal with all the other ones and I'm like tell me more. So it's just pure protectionism. So we went to the court and we said to the judge your honor it's an undisputed fact in this case that this law is irrational and we lost because of the rational basis test what the judge said was I'm allowed under the rational basis test to make up my own justification for the law which is true and he said and my justification is well maybe you'd show up for a pigeon job and pesticides have been applied to the building by somebody else and so we would need to know about pesticides. Well okay but you could show up to work on a bat problem and you didn't need any license and all right so that didn't work. So we appealed that case to the Ninth Circuit and I'm glad to say we won at the Ninth Circuit the Court of Appeals struck that law down and it said that the rational basis test is violated by a law that is contrary to itself that is where a law says well we're doing one thing but we're going to provide all these exemptions for it that undermine the purpose of the law itself. I'm a pretty obvious proposition to you certainly seems like an obvious proposition to non-lawyers that a law that contradicts itself is not rational and yet I'm sorry to say that is one of the few court opinions that has ever explained what the rational basis test means that there is a category of things that violate the test and that is laws that are self-contradictory that was the first case to say that that's really remarkable that shows you how murky it is to litigate into the rational basis as my friend Clark Neely says there really is no such thing as the rational basis test there's judging or not judging and the judge can decide whether to judge the case or not to judge. Yeah we had him as a guest and yeah Oh yeah a great podcast and he's right that it's like litigating in the twilight zone it's like punching under water So far the cases that you've discussed that you were involved in have been victories you've told us about cases that you've won Those are the ones I prefer to remember I fear that that may give listeners a potentially more of a sense of hope about this than there actually is that things are better than they actually are and so I'm wondering if you could give us those less fun to talk about examples of just shock really shocking and ridiculous losses Well the most egregious one is the one I mentioned about Louisiana the florist law so the florist licensing requirement was challenged in a case in 2005 and the judge said that the law was constitutional and passed the rational basis test I want to emphasize I'm not making this up the judge said it was constitutional because it protected the public from scratching their fingers on the wires that florists use to hold their floral arrangements together in order to get a license you would be trained in how to use the wires and therefore you would be less likely to harm the consumer now of course there was no evidence at all that anybody could use the wire or had been harmed by being scratched by wire or that it was dangerous no evidence in the record at all but the judge said that he could imagine such a circumstance and therefore it was constitutional and unfortunately that precedent remains on the books When a judge writes an opinion like that it's hard to believe in the sense that like you have to think he's either an idiot and most judges probably are not idiots or he's corrupt or he doesn't care about economics or he doesn't care but even still like he would there just seems to be like is he lying through his teeth like what's the motivation here so every action intends some good and the reason why the judge does that is because he's the victim of a bad ideology and that bad ideology is progressivism writing that opinion is embarrassed by it knows how stupid it is but convinces himself that he's doing a better job because he believes in the virtue of judicial restraint so the nonsense concept of judicial restraint which is the idea that if the government wants to violate your rights courts should do nothing about it has been endorsed and embraced as if it were a positive good by a large number of conservative particularly but also liberal advocates and law professors and judges and so they have persuaded themselves that by showing restraint that's the term for restraint if you call your dereliction of duty restraint now it sounds like a positive virtue and so the judge persuades himself well I know this opinion is bad but it's for a higher good that higher good is judicial restraint I'm not interfering with the democratic process which of course is exactly the excuse that judges who issued decisions like Korematsu told themselves well I'm not going to interfere to protect the Japanese Americans from unjust internment but it's for the better it's for the greater good I also think it's important to note that if you look at the hierarchy of rights the kind of rights they get super strict scrutiny high protection such as free speech and then the ones that don't such as economic liberty they kind of mirror the rights that judges themselves like they probably haven't started a business they probably never really felt themselves tied to their economic life like being an entrepreneur we made this point before with a lot of modern like political philosophers the same sort of thing you read Rawls and he talks about the kinds of rights that are super important and they're all the kinds of rights that are super important for being a professor at Harvard Aristotle said that the idea of life is philosophy and the Winem's made their god a horse and in the same way if courts were presided over by carpenters there would be a lot of very well thought out very careful judicial opinions about carpentry and there would be some and then and the judges at that time would then say lawyers you can regulate them however you want look the other way we don't care and that's what you would get I think judges who pay attention to these issues let me say I think that there are lots of judges out there who know how bad the situation is with rational basis test the rational basis test but there's nothing they can do about it because it's the controlling precedent now there is something they can do about it they can at least write separate opinions that say I'm forced to do this even though I think it's wrong because the law is so bad that's what Judge Janice Brown did not long ago in a case that I worked on called Headinga that was a case in which dairy regulations in this country are completely irrational it's always milk, Debbie and milk terribly products milk and then yes milk again yeah in the Headinga case that Mr. Headinga had found that the law just the dairy regulations just didn't have having to not apply to his dairy operations and so that he was able to charge less than the minimum required by federal law for most other dairies so the dairies didn't like that so they got a law passed to single him out and shut him down so he sued and challenged that and his case was dismissed because the judge said I can imagine a rationale for the law therefore I won't even listen to the evidence and Judge Janice Brown upheld the dismissal but very reluctantly I wrote a wonderful separate opinion in that case saying this rational basis test just all it is is blinding the judge to the kinds of shenanigans that we would never tolerate if this were religious freedom or freedom of speech for example I mean she doesn't use this example but we would never say that the Catholics can say there's not allowed to be another Protestant church unless we give them permission and yet we have a law that says you can't run a moving company until all the other moving companies say it's okay the only reason is that the law has decided to treat religious freedom with more seriousness than economic freedom economic liberties, long pedigree and central role in the lives of all individuals I think also it's worth mentioning that when we try to get the heading of the case to the Supreme Court in the brief that you wrote the question that we asked the Supreme Court to review how absolutely minor that court we weren't even asking them to overturn the rational basis test all we asked in that case was we asked the court to say that we're allowed to introduce evidence before they roll the rational basis test as I mentioned said that the law will be upheld as constitutional as if there's any rational conception that might have concluded it was a good idea well you ought to be able to introduce evidence that that is not the case you know if I'm required which I am to disprove every possible basis for the law in order to win the rational basis case I ought to be allowed to introduce that evidence and what the heading of court did dismissed the case prior to fact-fighting without receiving any evidence because the judge said I can imagine a rational for the law and unfortunately the courts are kind of in disarray on this issue about whether they are required to allow a plaintiff in a rational basis case to even introduce evidence at all and I in fact just last month I published a law review article about this in the George Mason Civil Rights Law Journal about the relationship between the motion to dismiss and the rational basis test and it really is something that remains unsettled and it shouldn't because within the in fact the same year that the rational basis test was invented in 1934 the Supreme Court said it is only an evidentiary presumption you're allowed to introduce evidence to overcome it it is not a complete barrier to all constitutional challenge but courts today often treated as a complete barrier to all constitutional challenge and they say you're not allowed to you can't win this case unless you disprove the rationality of this law and we're not going to allow you to introduce evidence to disprove the rationality of this law so it seems kind of dismal in the economic liberty front litigating for liberty but what do we see coming next do we have any reason to be optimistic is there anything coming down that may fix this abysmal situation yeah no I honestly I really am actually quite optimistic in the long run in the short run I think things are going to get worse before they get better but I'm convinced things are getting better law students today are far more skeptical of the New Deal era cases than their predecessors were and take much more seriously the idea of economic liberty we've seen scholarship by people like David Bernstein, Randy Barnett David Mayer on economic liberty in the Constitution that didn't exist before and we've seen these cases that have really established at least the beginning of a real I think revival of judicial respect for economic liberty it's slow it's gradual but of course it was gradual for the progressives it took them 50 years so we shouldn't be surprised by that and there is something on the horizon that eventually will have to come to the Supreme Court and that's there's a circuit split on this question of whether mere economic protectionism is a legitimate interest under the 14th amendment so the 6th circuit the 5th circuit and the 9th circuit have all said that the government may not use its licensing laws simply to prohibit economic competition for the purpose of benefiting some chosen favorites meanwhile the 10th circuit has said just the opposite in a case called powers versus Harris which was 10 years ago now more than that I think the court said yes the government may use its licensing laws to prohibit competition simply because it wants to even if there's no connection at all to protecting public safety or health or anything like that that circuit split the Supreme Court has been asked to take it on at least two occasions I believe and they have declined to do so so far well eventually they're going to have to resolve that question and when they do I think the scholarship and the judicial precedent is there to show that economic liberty is a central component of what we conceive of as liberty the phrase that lawyers often use is they say that the liberty protected by the 14th amendment is freedom that is deeply rooted in the nation's history and tradition it's hard to imagine a right more deeply rooted in this nation's history and tradition than economic independence, economic freedom that's why we call it the American dream so I am convinced that the coming generation of lawyers, judges and law professors is going to restore real meaning to economic liberty as a constitutional right and that's why I am very optimistic about the right to earn a living thank you for listening to free thoughts if you have any questions or comments about today's show you can find us on twitter free thoughts pod that's free thoughts pod free thoughts is a project of libertarianism.org and the Cato Institute and is produced by Evan Banks to learn more about libertarianism visit us on the web at www.libertarianism.org