This is the last of seven introductory articles on the relevance for constitutional law and the Supreme Court of the “born free and equal” clauses, which appeared in the Declaration of Independence and in six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791, in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868, and which is in 37 out of 50 state constitutions today. The “born free and equal” clause of the Massachusetts Constitution of 1780, for example, provided that:
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
***
In my initial articles, I argued that the “born free and equal” idea is deeply rooted in American history and tradition. I then applied the “born free and equal” clauses within the context of abortion prohibitions, same-sex marriage, and eugenics laws. I argued that laws against abortion, the right to have a gun in one’s home, and the right to civil marriage are “deeply rooted” in longstanding American tradition and history.
Today, I want to cover a right that gets a good deal less attention but is fundamental: the right to pursue one’s profession or livelihood. Indeed, this economic right is as vital to a free society as the rights to freedom of expression and of religion.
As an initial matter, the mere wording of the “born free and equal” clauses imply a freedom to choose one’s occupation. Taking just the Massachusetts Constitution of 1780 (quoted above), how can one meaningfully be said to have “the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness” if that person cannot enter the profession of their choice when qualified to do so?
Beyond its textual framing, the right to choose one’s occupation can also be grounded in more originalist terms. As I argued in prior pieces, privileges or immunities, or substantive due process rights, must be deeply rooted in American history and tradition. At the same time, such rights can be trumped where there is a “just” law “for the benefit of the whole [people].”
In the landmark 1823 case of Corfield v. Coryell, which I have explained is the 14th Amendment’s version of the “born free and equal” clauses, Justice Bushrod Washington stated that one right that is deeply rooted in American history and tradition is the “[t]he right of a citizen of one state to pass through or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise.” This right is deeply rooted in Founding Era state bills of rights in 1791.
For example, the Founding Era Pennsylvania Declaration of Rights of 1776 specifically provided that:
Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or sett [sic] of, men, who are a part only of that community, …
Almost identical clauses appear in four other Founding Era state declarations of rights, being Massachusetts, New Hampshire, Virginia, and Vermont. Additionally, two southern states, Maryland and North Carolina, prohibited the granting of all monopolies whatsoever in their state constitutions. In 1791, of the 12 states that had adopted new constitutions rather than retaining their colonial charters (as did Connecticut and Rhode Island), seven out of 12 – a majority in all the most populous states – forbade special laws for the benefit of monopolists of a whole profession.
***
Which brings us to the 1955 case of Williamson v. Lee Optical Co. Williamson arose after Oklahoma made it illegal for any person not a licensed optometrist or ophthalmologist to duplicate or replace broken eyeglasses without a written prescription from such a professional. This had the effect of putting opticians, like the Lee Optical Company, out of business, since such opticians provided people with new glasses by simply reading off the prescription on their old pair of glasses, thus saving customers a good deal of money.
Oklahoma justified its law by stating that it was desirable to incentivize people to keep their eyeglass prescriptions up to date. This contrasted with states like Rhode Island, which require that everyone who renews their driver’s license every five years to swear under penalty of perjury that they have seen an eye doctor and have had their glasses prescription updated. (And saves those of us, like me, from having to pay a hefty bill for an eye doctor if we break our old glasses several times within a five-year timespan.)
The Supreme Court sided with the eye doctors. According to a unanimous court, “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”
This view was (and is) mistaken, and in direct contrast with the Framing Era’s “common benefit” and anti-monopoly clauses (as well as the widespread anti-monopoly sentiments in 1868 when the 14th Amendment was written). As the Pennsylvania constitution stated, “Government is or ought to be instituted for the common benefit … not for the particular emolument or advantage of any single man, family or set of, men, who are a part only of that community.”
The Oklahoma law was a mere special-interest regulation to boost the revenue of eye doctors while putting opticians out of business. As Rhode Island demonstrates, its goal of incentivizing drivers to update their prescriptions could have been pursued by less restrictive means.
Today, thanks partly to Williamson, occupational licensing laws affect more than 20% of all workers in the United States. This includes over 100 professions, such as: barbers, cosmologists, tanning-salon owners, masseuses, shoe-shine workers, dry cleaners, or florists. As should be obvious, many of these occupations are safe enough to not require occupational licensing. Other professions – such as plumbers and electricians – often control their licensing body so as to ratchet up the price and availability of their services.
And even if occupational licensing is appropriate for plumbers and engineers (as it is for doctors, pilots, lawyers, and others), it cannot be done so restrictively that it does not license enough applicants to serve the public’s needs at a reasonable price.
For this reason, many western democracies like Germany, Japan, Brazil, South Africa, and Israel create a right to occupational freedom in their bills of rights, which they enforce vigorously in their case law.
***
I do not take issue with the court’s adoption of the rational basis test for most unenumerated rights, including as to economic regulations. But occupational licensing is an exception given the “common benefits” clauses in a large majority of state declarations of rights in 1791; the explicit recognition in Corfield v. Coryell of a right to pursue a profession of one’s choice; and the very nature of the “born free and equal” clauses.
Indeed, the economic right to pursue a line of work is just as fundamental a freedom as that of expression, religion, and unreasonable searches and seizures. The line between protecting personal but not economic liberty in such circumstances makes little sense and is neither deeply rooted in American history and tradition, nor even in current-day practice. Changing this would require the court to revisit long-standing precedent, but it is long past time that it did so.
