The Common Law right to earn a living

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In 1993 the local district attorney office raided my office. This is the "Raid at the Good Nite Inn" story at this link:

They did NOT file a criminal complaint. They did file in the newspaper an accusation of 7 felonies - practicing law without a license. And the paper did not report it when they found out that I was innocent and the prosecution never did file a complaint. Now fast forward 6 years to May 14, 1999. They raided my farm in Illinois and put me in jail. the FBI ageny Eley told me that it was for practising law without a license - but he was slightly wrong. Thus started my personal extradition case, a case where the extradition should have been refused but the lawyers and judges involved were all weak idiots. I suffered an illegal extradition. After being extradited I faced a jury trial and won. It was a week long trial and the jury took less than 2 hours for all 12 of them to vote me NOT GUILTY. The sole charge from the beginning was advertising - although they told my Mom that it was fraud - and my Mom disinherited me. The charge was 6126 which is stated verbatim here: http://www.lawyerdude.netfirms.com/6125.html

I have NEVER been convicted of a bar crime/ offense. I have never been convicted of a felony.

I am denied a right to make a living. This was done to me without benefit of due process of law. I was never invited to appear to defend myself before the supreme court of California. The state bar would not give me a transcript nor provide me with effective assistance of counsel despite their own rules saying that I have a right to counsel. They had 2 case. They kicked me out of the first hearing and they did not invite me to he 2^nd one. The state took my car away during the week of my hearing.

1. Medley of cases, rules, and statutes re what is practice of law including 1-311.

People ask me: Define “the practice of law” These 7 cases attempt and fail to define the practice of law. Thus B&P 6125 is unconstitutional for overbreadth and vagueness. That is why they declined to ever prosecute me for that. The prosecuted me once for 6126 which is advertising - and I won that case. Here is my winning argument, by the way: http://www.lawyerdude.netfirms.com/5918.html

“No person shall practice law in California unless the person is an active member of the State Bar.”

What the “practice of law is NOT”. Rule 1-311 creates a safe harbor: “1) Legal work of a preparatory nature, such as legal research, the assemblage of data and other necessary information, drafting of pleadings, briefs, and other similar documents;”

Seems that the 1^st amendment creates a safe harbor when combined with the 14^th. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens. The rights to speech, press, association and petition shall not be abridged.

Here are the 7 cases used illegally by the bar to define “practice law” and to abridge speech of lawyers. Why illegally? Because the definition is too vague and overbroad! See my overbreadth page here: http://www.lawyerdude.8m.com/5409.html See also http://www.lawyerdude.netfirms.com/yickwo.html The entire medley is as follows (listed in order of newness):

7 People v. Merchants Protective Corporation (1922) 189 Cal. 531, 535 [209 P. 363];

This is about______. Now 14 years later, the state bar permits non-lawyers to do evictions if they buy a license from the bar. They can be bar-certified bankruptcy petition writers or bar-certified paralegals or bar certified forms writers. This aint about protecting the public and it never has been. Since 1927 the bar here has taken away our speech and press rights and sold em back to us as a license. This is the theme of my group at www.groups.yahoo.com/group/lawyerdude Note well that they don’t discuss the lies of the cop who did the sting. They find nothing wrong with the service provided. They use police and other public money to enforce their oppression and abridgment of speech - and to what end? They have served nobody except the license sellers at the bar who now sell licenses to non lawyers!

“At the common law,” wrote William Blackstone, “every man might use what trade he pleased.”[3] This seemingly innocuous phrase, dropped offhandedly into a chapter on the obligations of master and servant, hints at a rich common law tradition which has largely been ignored—or even denied outright—by more modern scholarship. This paper will examine the history of the common law right to a lawful occupation. Part I will address the history of this right between Magna Carta and the era of Lord Edward Coke, who might be rightly regarded as the founding father of what is now called “economic substantive due process.” Part II discusses the effect of Coke’s works on the American Revolution, and Part III discusses his influence on the early period of American Constitutional history. Part IV discusses The Slaughter House Cases, and the treatment of this common law right between those cases and the New Deal era. Part V discusses academic criticism of these cases, and the triumph of legal positivism in 1937. Part VI will review the treatment of this right from 1937 to the present day. It is my hope that this paper will at least illustrate that the economic substantive due process cases did not announce principles unknown to legal history—were not legal interlopers gone beyond reasonable readings of precedent—instead it was 1937’s repudiation of protections for economic liberties that was the new, ahistorical reading of the law, and one which has proven itself to be fallacious and dangerous.

All merchants are to be safe and secure in leaving and entering England, and in staying and traveling in England, both by land and by water, to buy and sell free from all maletotes by the ancient and rightful customs, except, in time of war, such as come from an enemy country. And if such are found in our land at the outbreak of war they shall be detained without damage to their persons or goods, until we or our chief justiciar know how the merchants of our land are treated in the enemy country; and if ours are safe there, the others shall be safe in our land.[4]

Although Magna Carta’s importance has been greatly exaggerated, the “myth of Magna Carta” was built by men who were simultaneously building the background tradition of English and American liberty.[5] Before (and after) Magna Carta, the king exercised an undefined sweep of power called the “prerogative,” by which he could grant certain exclusive rights, or “franchises” to his subjects. But from early on, the English suspicion of the prerogative power manifested itself in resistance to these royal grants of exclusive rights to trade.

Thus Fortescue, whose De Laudibus Legum Angliae (“In Praise of the Laws of England”) was written in 1471, wrote that “In the realm of England, no one […is] hindered from providing himself with salt or goods whatever, at his own pleasure from any vendor. ... Nor can the king there, by himself or by his ministers, impose any tallages, subsidies, or any other burdens whatever on his subjects, nor change his laws, nor make new ones, without concession or assent of his whole realm in Parliament.”[6]

Hence, every inhabitant of that realm uses at his own pleasure the fruits which his land yields, the increase of his flock, and all the emoluments which he gains, whether by his own industry or that of others, from land and sea, hindered by the injuries and rapine of none without obtaining at least due amends. Hence the inhabitants of that land are rich, abounding in gold and silver.[7]

Fortescue was largely right. Of course, the crown was not a free market institution, and neither were the royal courts. But as far back as the reign of Edward III, common law courts had been concerned with protecting the subject’s right to such economic freedom. In 1377, the court struck down a royal monopoly which had been granted to a man named John Peachie, on the sale of wine in London.[8] The court held this to be a violation of the right of free trade.[9] Similarly, in John Dier’s Case (1415),[10] Chief Justice Holt ruled against a monopoly charter, holding that he would have imprisoned anyone who had claimed such a monopoly on his own authority.[11]

Thus the right of the king to control the economy was limited at common law, by a right, the importance of which must have been very obvious in an era where starvation and pestilence were daily experiences. The right to support oneself by a lawful calling[12] was not only central to the health of the state, but to the lives of citizens. Such economic liberties were protected in, for example, Prior of Christchurch Canterbury v. Bendysshe (1503?),[13] in which the court held that “[d]amage alone is not a cause of action. Thus, [where] an innkeeper or other victualler comes and dwells next to another [innkeeper] and thereby more of the customers resort to him than the other, it is a damage to the other, but no wrong, for he cannot compel men to buy victuals from him rather than from the other.”[14]

By far the most outspoken defender of the right to earn a living was Sir Edward Coke. Speaker of the House of Commons, then Attorney General for Queen Elizabeth, Coke was appointed Chief Justice of King’s Bench by King James I. Coke is best remembered today for his decision in Dr. Bonham’s Case,[15] in which he asserted the supremacy of the law over the king. But Coke was also the leading opponent of royal monopolies.[16] This is rather ironic, since, as Elizabeth’s Attorney General, Coke was required to argue on behalf of the plaintiff in the famous Case of Monopolies, or Darcy v. Allen, in 1602.[17] Queen Elizabeth had granted a monopoly in playing cards to one Ralph Bowes, who then sold that monopoly to Edward Darcy. Allen then made and sold playing cards, and Darcy sued.[18] Chief Justice Popham ruled for the defendant. As Coke wrote,

All trades, as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labour, for the maintenance of themselves and their families, and for the increase of their substance, to serve the Queen when occasion shall require, are profitable for the commonwealth, and therefore the grant to the plaintiff to have the sole making of them is against the common law, and the benefit and liberty of the subject….[19]

Those who today criticize the concept of “economic due process” argue in essence that protection of freedom of contract is merely a guise for the wealthy to oppress the poor or prevent regulations which aim to protect the safety and health of the people; or is even an attempt to “enact Mr. Herbert Spencer’s Social Statics,”[20] and consequently a threat of rampant laissez-faire, leaving the consumer no protection against faulty or dangerous products. Yet the common law courts which had always defended freedom of contract had also always upheld the right of the government to regulate or license dangerous occupations to protect the consumer. Indeed, consumer protection laws go back to before 1189. Glanville writes that “if the seller has sold the thing to the buyer as sound and without fault and the buyer can afterwards satisfactorily prove that at the time of the contract the thing was not sound and had a fault, then the seller will be bound to take back his thing.”[21] And ancient court reports are full of cases protecting the consumer from fraud or from shoddy merchandise. For instance, in the Leet Roll of 24 Edward I (1285-86), we find a case in which “Robert Suffield [was found liable] for making fraud etc., by selling oil of one kind for oil of another kind,” and was fined four shillings.[22] In another case, “all those Sprowston men ... knowingly buy measly pigs, and they sell the said sausages and puddings, unfit for human bodies, in Norwich market.”[23] The Fair Court of St. Ives routinely dealt with cases in which, for instance, a loaf of bread was found “deficient in weight,” and the seller fined,[24] or where “Adam Cabel sells whelks with good and bad mixed together.”[25]

It has been found that John of Reading sold to Robert of Bedford two bales of licorice and warranted it to him as good and pure, and afterwards the said Robert found that this licorice was not so good and pure as the sample which the said John first showed to the said Robert in making the sale, and not uniform therewith; therefore inquest is to be made by the merchants whether the said licorice ought to be forfeited to the use of the lord king or not according to merchant law and custom.[26]

There are dozens, perhaps hundreds of cases like this. The courts never held that the right to pursue a given occupation necessarily meant the right to sell shoddy merchandise, or to be free from basic regulations of safety, regularity, or even taxation.[27] What the common law held was that such regulations could not be valid if they were used for the purpose of keeping an honest person out of the market.[28] This point was made clear in the City of London’s Case (1610),[29] when the court ruled that “the King may erect guildam mercatoriam, i.e., a fraternity or society or corporation of merchants, to the end that good order and rule should be by them observed for the increase and advancement of trade and merchandise, and not for the hindrance of it.”[30] In other words, government could regulate trade impartially, but not in order to prevent the free exercise of a lawful calling. The cases agreed with the principle explained by Friedrich Hayek: “[A free economy] does not exclude on principle all those regulations of economic activity which can be laid down in the form of general rules specifying conditions which everybody who engages in a certain activity must satisfy”—for example, a ban on “the production and sale of phosphorus matches...for reasons of health.” Benign regulations of trade, much like nuisance laws, are little more than mechanisms for greater economic efficiency, which “will normally raise the cost of production, or, what amounts to the same thing, reduce over-all productivity. But if this effect on cost is fully taken into account and it is still thought worthwhile to incur the cost to achieve a given end, there is little more to be said about it.”[31] But, Hayek concluded, “[t]he economist will remain suspicious and hold that there is a strong presumption against such measures because their overall cost is almost always underestimated, and because one disadvantage in particular—namely, the prevention of new developments—can never be fully taken into account.”[32] Or, as a 1727 case put it, “The reason why particular restraints [on trade] are allowed is, because the publick is not concerned, so long as the party exercises the trade somewhere. But if it tends to prevent the exercise of [the trade] anywhere, it is not to be endured; because the publick loses the benefit of the party’s labour, and the party himself is rendered an useless member of the community.”[33] A South Carolina court put it more simply. A city may regulate a trade, “[b]ut the suppression of a trade is not a regulation. To be regulated, the trade must subsist.”[34]

In Davenant v. Hurdis,[35] Coke argued the same point—that though a “by-law” which regulated the practice of a trade was legitimate, a law which restrained trade was unjust. Thus “ordinances for the better rule and government of the company ... are consonant to law and reason,” but an ordinance which required a person to have clothing only made by a particular guild of tailors “was against the common law because it was against the liberty of the subject.”[36]

Another example is Allen v. Tooley.[37] This was a suit against an upholsterer who had not served an apprenticeship before taking up his trade. Coke, who by this time had become Chief Justice of King’s Bench, ruled that “no skill there is in this, for he may well learn this in seven hours.”[38] As unskilled labor, it was not subject to the sort of licensing restrictions appropriate to more technical trades. Tooley lucidly explained the common law’s view of regulations for the protection of consumers:

[B]y the very common law, it was lawful for any man to use any trade thereby to maintain himself and his family; this was both lawful and very commendable, but yet by the common law, if a man will take upon him to use any trade in which he hath no skill the law provides a punishment for such offenders, and such persons were to be punished in the court leet, and by actions brought, as by the cases before….[39]

The court cited the example of a blacksmith who injured a horse because he was not skilled in his trade—proper legal redress, the court explained, was already available in the form of a suit for damages. “Unskilfulness is a sufficient punishment for him,” Chief Justice Coke said,[40] but the case settled out of court before a final decision. In short, the common law view was that skilled trades were subject to regulation only in order to increase or advance trade, but not to hinder it.[41] As Holdsworth says, “the medieval judges favored the principle [of free trade] just as they favored the principle of freedom of alienation, because they were hostile to all arbitrary restrictions on personal liberty, or rights of property, for which no legal justification could be shown.”[42]

at the common law, no man could be prohibited from working in any lawful trade, for the law abhors idleness, the mother of all evil, otium omnium vitiorum mater, and especially in young men, who ought in their youth, (which is their seed time) to learn lawful sciences and trades, which are profitable to the commonwealth, and whereof they might reap the fruit in their old age, for idle in youth, poor in age; and therefore the common law abhors all monopolies, which prohibit any from working in any lawful trade….[43]

Coke’s defense of the free market in these cases was not intended to protect the rich, but exactly the opposite: to defend the poor from legal restrictions on the freedom which gave them a chance to work their way out of poverty. It was the wealthy who benefited from monopoly practices. When, furious over Dr. Bonham’s Case, James finally fired him, Coke entered the House of Commons, and kept on attacking the monopolies. “The monopolizer engrosseth to himself what should be free to every man,” he said.[44] Finally, he managed to get an act passed, the Statute of Monopolies, which declared that all monopolies—save temporary patents, used to encourage innovation—“are altogether contrary to the laws of the realm, and so are and shall be utterly void and of none effect and in no wise to be put in use or execution.”[45] In his Commentaries on American Law, Chancellor Kent referred to the Statute of Monopolies as “magna charta for British industry.” It “contained a noble principle, and secured to every subject unlimited freedom of action, provided he did no injury to others, nor violated statute law.”[46]

Coke was not the only judge who argued that monopolies violated the common law.[47] In Colgate v. Bacheler,[48] the court had held that “[a] condition is against the law, to prohibit or restrain any to use a lawful trade at any time, or any place, for as well as he may restrain him for one time or one place, he may restrain him for longer times and more places, which is against the benefit of the commonwealth; for being freemen, it is free for them to exercise their trade in any place. [A party] ought not to be abridged of his trade and living.” In 1632 the case of Mounson v. Lyster struck down a monopoly under the Statute of Monopolies.[49] In 1624 the court struck down an ordinance of the Company of Bricklayers which prohibited the plastering of chimney bricks with lime, and permitting only the Company of Plasterers to do the job.[50]

But it was Coke who fought monopolies so intensely that his name became permanently associated with freedom of trade. After he retired from Parliament, he wrote series of books, the Institutes of the Common Law of England, which were to be the training books for generations of lawyers, including Thomas Jefferson, John Adams, and John Marshall. In a chapter on monopolies, Coke wrote that “all grants of monopolies are against the ancient and fundamentall laws of this kingdome,” because

A mans trade is accounted his life, because it maintaineth his life; and therefore the monopolist that takes away a mans trade, taketh away his life, and therefore is so much the more odious because he is vir sanguinis. Against these inventers and propounders of evill things, the Holy Ghost hath spoken, inventores malorum, &c., digni sunt morte.[51]

So likewise, and for the same reason, if a graunt be made to any man, to have the sole making of cards, or the sole dealing with any other trade, that graunt is against the liberty and freedome of the subject, that before did, or lawfully might have used that trade, and consequently against this great charter. Generally all monopolies are against this great charter, because they are against the liberty and freedome of the subject, and against the law of the land.[52]

The “Myth of Magna Carta,” largely Coke’s invention, had come down to earth. Monopolies were anathema to the generation that grew up reading the Institutes. In 1678, the Court of King’s Bench found a Mr. Ripton not guilty of “exercising the trade of a grocer, not having served and apprentiship,” because “any man at common law might use what trade he pleaseth.”[53] In 1685, in Thomas v. Sorrel,[54] the Court of Exchequer Chamber noted that “any free-man of London may trade in any part of England.” In 1687, King’s Bench struck down a monopoly which had been granted “for the sole printing of bank writs, bonds, and indentures,”[55] citing Darcy v. Allen. In 1695, the Court struck down an ordinance requiring that “every person using the occupation of music and dancing” in London should be a member of the Company of Musicians, calling the law monopolistic.[56]

In the 1718 case Parry v. Berry[57] the court held that “without a custom such a bye-law, to restrain persons not being free of the borough from exercising a trade, cannot be maintained.”[58] Probably the most famous of these cases is Keeble v. Hickeringill, [59] in which the plaintiff complained that the defendant was firing off a gun to frighten ducks away from his duck-pond, “intending to damnify the plaintiff in his vivary, and to fright and drive away the wildfowl ... and deprive him of his profit[.]”[60] Chief Justice Holt wrote that “when a man useth his art or skill to take [ducks], to sell and dispose of for his profit; this is his trade; and he that hinder another in his trade or livelihood is liable to an action for so hindering him.”[61] Hickeringill’s protection of the right to earn a living continues through the English cases of the 18th century, providing the necessary legal protection for the beginning of the Industrial Revolution.[62]

The result of all this, in no small part, would be the American Revolution. After the repeal of the Townshend Duties in 1773, Jefferson wrote, “Nothing of particular excitement occurring for a considerable time our countrymen seemed to fall into a state of insensibility to our situation.”[63] The immediate crisis of the Townshend Acts being over, the tradesmen who made up Boston’s Sons of Liberty had returned home, and the American Revolution teetered on the brink. It was monopoly that pushed it over.[64] When George III granted the East India Company the right not only to ship tea, but to sell it in America, workers who were now legally closed out of a livelihood reacted with the famous Boston Tea Party.

The founding generation understood monopoly in a way we do not: to them, monopoly meant a law which closed off the rights of common people to make a living—it was not (what we mean by the term today) simply a big, successful company, often one which has succeeded in spite of the law: Microsoft, for instance, was not what Thomas Jefferson or Adam Smith meant when they denounced “monopoly.” The Post Office is.[65] It was precisely the fact that the government illegalized harmless competition—indeed, helpful competition—that upset the founding generation. That is why Locke and Smith had denounced monopolies: legal privileges granted to one at the expense of the many. In their famous “Cato’s Letters,” published in 1721, Thomas Gordon and John Trenchard had written that while free trade “will turn Deserts into fruitful Fields, Villages into great Cities, Cottages into Palaces,” the state’s exercise of arbitrary power would pervert trade into a weapon or a catastrophe. “Monopolies, exclusive Companies, Liberties of Pre-emption, &c. shall be obtained for Bribes or Favour, or in Trust for Great Men, or vile and worthless Women.” But those merchants who lacked political connections “shall be burthened, oppressed, manacled, stopped, and delayed, to extort Presents, to wreak Revenge, or to give Preferences of Markets to Favourites.”[66]

It has often been remarked that Thomas Jefferson’s ringing phraseology in the Declaration of Independence was a departure from John Locke’s earlier defense of the rights of “life, liberty, and estate,” or “life, liberty and property.” But keeping in mind Jefferson’s other influences, it becomes evident that Jefferson’s change of the phrase into “life, liberty, and the pursuit of happiness” was made in order to assert this right of livelihood. Earlier in 1776, George Mason had begun the Virginia Declaration of Rights with the phrase, “That all men are by nature equally free and independent and have certain inherent rights…namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”[67] Jefferson, who read Mason’s declaration with interest while he labored away in Philadelphia, was very concerned with social mobility; he resented what he would later call the “artificial aristocracy,” and wanted instead to foster the “natural aristocracy” of “virtue and talents.”[68] That government was best which most efficiently enabled the natural aristocracy to rise, he said, and America presented a unique opportunity to create such a government. “Here every one may have land to labor for himself if he chuses; or, preferring the exercise of any other industry, may exact for it such compensation as not only to afford a comfortable subsistence, but wherewith to provide for a cessation from labor in old age.”[69] In his first inaugural address, Jefferson defined “the sum of good government” as one which “shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”[70] In a letter he wrote late in life, Jefferson would write, “To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.”[71] Surely this is “the pursuit of happiness.”

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called. What must be the spirit of legislation where a manufacturer of linen cloth is forbidden to bury his own child in a linen shroud, in order to favor his neighbour who manufactures woolen cloth; where the manufacturer and wearer of woolen cloth are again forbidden the oeconomical use of buttons of that material, in favor of the manufacturer of buttons of other materials![72]

Bernard Seigan has said that “[t]he Framers might well be described as commercial republicans.”[73] The specter of legally forbidding an honest person from making an honest living haunted the founding generation so much that four states, when ratifying the Constitution, included a ban on monopolies among their proposed bills of rights.[74] To the framers of the Constitution, the question of monopoly was not primarily a matter of economic efficiency. It was a matter of natural right: the right to engage in the very labor which Locke said was the foundation of property rights to begin with: “every man has a ‘property’ in his own ‘person.’ This nobody has any right to but himself. The ‘labour’ of his body and the ‘work’ of his hands, we may say, are properly his.”[75] It was a matter of the free exercise of one’s faculties, a right granted by nature, and protected by the common law. This is why Chancellor Kent referred to the Statute of Monopolies as protecting “freedom of action.”

We can see this concern expressed also in the founders’ attitude toward patents and copyrights. Although in the Federalist Papers, James Madison expressed his belief that “The utility of the power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law,”[76] in fact Madison and Jefferson were quite suspicious of the idea. Jefferson wrote to him that he wished the new Constitution would prohibit monopolies. “With regard to Monopolies they are justly classed among the greatest nusances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced?”[77] Jefferson agreed that the temporary monopolies called patents and copyrights were useful, even while he disagreed that they were legitimate from a natural rights point of view. [78] In a letter written in 1813, he expressed his deep concerns about the monopolistic power inherent in patents. “Every man should be protected in his lawful acts,” he wrote. “But he is endamaged if forbidden to use a machine lawfully erected, at considerable expense, unless he will pay a new and unexpected price for it. ... Laws, moreover, abridging the natural right of the citizen, should be restrained by rigorous constructions within their narrowest limits.”[79] At the Constitutional Convention, the framers debated the question of “a [Congressional] power ‘to grant charters of incorporation....’” [80] Some delegates objected because they believed such a power would might permit Congress to create monopolies. George Mason, responded to these fears that “[h]e was afraid of monopolies of every sort, which he did not think were by any means already implied,” by the commerce clause. The motion failed without further discussion.

Historian Gordon S. Wood describes the hostility with which the Founding generation greeted the notion of monopolies.

[B]ecause of republican aversion to chartered monopolies, the creation of corporations [in early America] did not take place without strenuous opposition and heated debate. As a consequence, these corporations were radically transformed. Within a few years most of them became very different from their monarchical predecessors: they were no longer exclusive monopolies, and there were no longer public. They became private property and what Samuel Blodget in 1806 called “rivals for the common weal.” And they were created in astonishing numbers unduplicated anywhere else in the world.[81]

The revolution had been fought to prevent the arbitrary sway over economic liberty which the throne exercised through (inter alia) the monopoly power. The grant of monopolies “even when their public purpose seemed obvious ... were repugnant to the spirit of American republicanism, ‘which does not admit of granting peculiar privileges to any body of men.’”[82] As Wood explains, this clamor did not result in the abolition of the power to grant corporate charters, but in the widening of access to those charters: “[T]he legislatures opened up the legal privileges to all who desired them.”[83] This meant that “the traditional exclusivity of corporate charters [was] destroyed[.]”[84] We can see this, for instance, in the writings of Chancellor Kent, who said that “although corporations were found to be very beneficial in the earlier periods of European history ... their exclusive privileges have too frequently served as monopolies, checking the free circulation of labor, and enhancing the price of the fruits of industry.”[85]

Economic liberty was specifically protected in various parts of the Constitution. The contracts clause, for instance, prohibited any state from passing any law “impairing the Obligation of Contracts.”[86] The founders had read the history of ancient Greece, and knew that one of the tools of the demagogue is the nullification of debts.[87] The farmers who had made Shays’ Rebellion (which had served as the spur for holding a Constitutional Convention) had sought to have debts annulled. But the contracts clause was just as important for the poor farmer as for the landlord. If the farmer’s legislator could nullify the contract of a landlord, then the landlord could nullify the contracts of the farmer. “[L]aws impairing the obligations of contracts,” Madison wrote in Federalist 44, “are contrary to the first principles of the social compact and to every principle of sound legislation.” The prohibition on them was a “bulwark in favor of personal security and private rights.”[88] The founders understood that it is the poor who have the most to gain from economic freedom, and that laws restricting the freedom of contract are restrictions on freedom itself. Today’s legal community regards it as just the opposite—freedom of contract, many argue, is a doctrine central to the despised philosophy of laissez-faire, a philosophy which leads to oppression and blocks legislatures from passing laws for protecting the poor.[89] And although the right to pursue a lawful occupation has been repeatedly cited in American case law, as Hamlet might say, it has been mentioned more often in the breach than in the observance.

In the 1798 case of Calder v. Bull, Justice Chase described a class of laws which “cannot be considered a rightful exercise of legislative authority”:

A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.[90]

The state and federal courts were in wide agreement on this point. In another famous case, Corfield v. Coryell,[91] Justice Bushrod Washington wrote that there are certain “privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The 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 ... to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental….[92]

Between Corfield and the 1873 Slaughter House Cases, there are about sixty cases at both state and federal levels which discussed this common law right.[93] Commonwealth v. Leftwich[94] for instance, held that “Statutes which impose restrictions upon trade or common occupation, or which levy an excise or tax upon them, must be construed strictly.”[95] The 1829 case of Beall v. Beck[96] addressed whether a landlord or innkeeper had the right to take possession of property—in this case, a slave—left behind by a boarder who had not paid his rent. The court said that although the landlord had a privilege to retain a non-paying guest’s property, “[w]herever the privilege of the landlord would destroy a lawful trade or occupation which is useful to the public, it is restrained by law.”[97]

Some of the cases are historically intriguing. In City of Memphis v. Winfield (1848),[98] Justice Turley of the Tennessee Supreme Court struck down an ordinance making it

the duty of the watchmen to arrest any free negro or slave that he or they may find out after ten o’clock, and lodge them in the calaboose, there to remain till next morning, unless they have a special pass from their master or mistress, if they be slaves, at which time, he, she, or they, if they be slaves, shall receive ten lashes on their naked backs, and a fine of two dollars be imposed on the owner of such slave. If a free person of color, he, she, or they shall be fined the sum of ten dollars, for the use of the [city].[99]

Considering that this case arose in a southern court in the 1840s, it is remarkable enough that the court struck down the statute; the angry language which the court used to denounce it is even more remarkable: “This new curfew law ... is high handed and oppressive, and ... an attempt to impair the liberty of a free person unnecessarily, to restrain him from the exercise of his lawful pursuits, and to make an innocent act a crime, and to exact a penalty therefor both by fine and imprisonment, without trial before any tribunal.”

A free negro is not, it is true, a citizen of full privileges in our state, but still he is a free person, and cannot be punished in this summary mode both in his person and his purse, for an act innocent in itself, and which is made malum prohibitum by the corporation of Memphis. The lot of a free negro is hard enough at the best, resulting from necessity arising out of the relation in which he stands to his brethren who are in servitude, and it is both cruel and useless to add to his troubles by unnecessary and painful restraints in the use of such liberty as is allowed him. He must live, and in order to do so, he must work. Every one knows that in cities, very often, the most profitable employment is to be found in the night, loading and unloading steamboats and other craft, waiting about hotels, theatres, places of amusement, both public and private, wood cutting, fire making, shoe and boot cleaning, not to mention the various handicraft employments, such as that of the barber, &c. All these things are sources, in large cities, of much profit to the free man of color, and you necessarily deprive him of them entirely, if you compel him, like a wild beast, to hide his head in his den from ten o’clock till day-light, under the penalty of being pursued by watchmen and constables for the purpose of being imprisoned and fined as if he had been committing a crime against society….[100]

The court noted that “under this ordinance, he would be endangered if after ten o’clock he were found in the street in pursuit of a doctor to attend upon a dying member of his family,”[101] and struck down the ordinance.

One sees here the moral dimension to the common law right to earn a living. A number of nineteenth century cases which discussed this right would trace it to the Bible, where, in Genesis, God tells Adam, “In the sweat of thy face shalt thou eat bread, till thou return unto the ground[.]”[102] In Democracy in America, Alexis de Tocqueville noted that “Americans consider all honest callings honorable,” because

[a]mong democratic peoples where there is no hereditary wealth, every man works for his living, or has worked, or comes from parents who have worked. Everything therefore prompts the assumption that to work is the necessary, natural, and honest condition of all men. ... As the desire for prosperity is universal, fortunes are middling and ephemeral, and everyone needs to increase his resources or create fresh ones for his children, all see quite clearly that it is profit which, if not wholly then at least partially, prompts them to work. ... In the United States, professions are more or less unpleasant, more or less lucrative, but they are never high or low. Every honest profession is honorable.[103]

The Alabama Supreme Court held in 1838 “that a citizen has the right to aspire to office, or to pursue any lawful avocation, [and] it seems to me impossible that he can be legally deprived of this right, as a punishment for an offence committed, without a trial by jury.”[104] In 1850, the Georgia Supreme Court held, in Mayor of Savannah v. Hartridge,[105] that “statutes which impose restrictions upon trade or common occupations, and which levy an excise or tax upon them, must be construed strictly.”[106] Likewise in Hall v. Ohio,[107] the Ohio Supreme Court held that “statutes which impose restrictions on trade or common occupations must be construed strictly.”[108] And the Supreme Court of Illinois held, in the 1855 case Wade v. Halligan, that “[t]here are lawful trades, which are, nevertheless, treated as nuisances in particular places and localities. There is a compatibility and harmony in certain occupations, and the contrary in certain others, and so it is of human actions and conduct. We must exercise common sense, prudence, and a sound and impartial judgment, in passing upon such transactions, and with an anxious view to protect all parties in their just rights, and the profitable and quiet enjoyment and pursuit of their interests.”[109]

The New York Court of Appeals struck down a temperance law in 1856 in Wynehamer v. People. There the court held that

all property is equally sacred in the view of the constitution, and therefore that speculations as to [liquor’s] chemical or scientific qualities, or the mischief engendered by its abuse, have very little to do with the inquiry. Property, if protected by the constitution from such legislation as that we are now considering, is protected because it is property innocently acquired under existing laws, and not upon any theory which even so much as opens the question of its utility.[110]

In light of this legal tradition, the presumption expressed in Charles River Bridge v. Warren Bridge, that “‘[t]he exercise of the corporate franchise being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation,’” was long established.[111] In short, as one author has noted, “[L]ong before the adoption of the Fourteenth Amendment, British and American courts protected many facets of the individual’s right to pursue a gainful occupation against encroachment by the government.”[112]

After the Civil War, in response to the Black Codes and Jim Crow laws, the Federal Government sought new ways to protect the former slaves from oppression by their own states. The ingenuity with which the Southern legislatures devised ways “keeping the black man in his social and legal place” is occasionally astonishing.[113] Among the laws which the Congress passed to redress these problems was the Civil Rights Act of 1866[114] and the Fourteenth Amendment, the first section of which held in part that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[115]

There is a good deal of dispute in the scholarly literature over the meaning of the “privileges or immunities” clause of the Amendment, but, as Bernard Seigan writes, “commentators generally agree that it was intended to guarantee and constitutionalize the Civil Rights Act.”[116] That act had as its primary concern the protection of economic rights for the new black citizens. It mentioned none of what later courts would call “fundamental rights” (speech, travel, procreation, etc.) but it did state that all “citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude ... shall have the same right ... to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens….”It is noteworthy that the Congressional framers of the Fourteenth Amendment, for instance, Senators Howard and Trumbull, referred to Justice Bushrod Washington’s explanation of “privileges and immunities” in Corfield v. Coryell when explaining this clause.[117] Representative John Bingham, one of the authors of the privileges and immunities clause, said that the clause included “the liberty ... to work in an honest calling and contribute by your own toil in some sort to the support of yourself, to the support of your fellowmen and to be secure in the enjoyment of the fruits of your toil.”[118] Senator John Sherman explained that courts interpreting the Fourteenth Amendment’s privileges and immunities clause “will look first at the Constitution of the United States as the primary fountain of authority[, and] to the Declaration of American Independence, to every scrap of American history, to the history of England, to the common law of England, ... and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens.”.[119] Representative Hamilton asked

[H]as not every person a right, to carry on his own occupation, to secure the fruits of his own industry, and appropriate them as best suits himself, as long as it is a legitimate exercise of this right and not vicious in itself, or against public policy, or morally wrong, or against the natural rights of others?[120]

These statements are at least plausible evidence for the claim of one federal court, that “it seems quite impossible that any definition of these terms [“privileges and immunities”] could be adopted, or even seriously proposed, so narrow as to exclude the right to labor for subsistence.”[121]

The Fourteenth Amendment’s protection of the right to earn a living was part of the sublimated conflict that made up the Reconstruction era. That conflict consisted largely of revenge, pent-up frustration, cultural chauvinism, and attempts by Southerners to maintain to the last a firm hold on a social order which was “gone with the wind.” A good example is the case of Cummings v. Missouri,[122] which involved a Missouri statute requiring citizens to take an oath of loyalty to the United States before engaging in a profession. Citizens were required to swear that they had never “been in armed hostility to the United States, or to the lawful authorities thereof,” or had participated in the secessionist cause in any way.[123] A person who refused to take this oath was forbidden not just from holding “any office of honor, trust, or profit” under state authority, but even from holding any position in any corporation, teaching in private schools, or “holding any real estate or other property in trust for the use of any church.”[124]

In an opinion by Justice Field, the Supreme Court struck this down, holding that “[t]he oath could not ... have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged.”[125] The state had argued that the law did not deprive citizens of “life liberty or property,” but merely restrained them from working. Field rejected this contention. “The learned counsel does not use these terms—life, liberty, and property—as comprehending every right known to the law,” he wrote. “He does not include under property those estates which one may acquire in professions, though they are often the source of the highest emoluments and honors. ... Disqualification from the pursuits of a lawful avocation ... may also, and often has been, imposed as punishment.”[126]

The theory upon which our political institutions rest is, that all men have certain inalienable rights – that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.[127]

In an era in which such severe racial conflicts were leading to statutory schemes for keeping individuals from pursuing happiness, the importance of protecting the right to earn an honest living can hardly be overestimated. In Ex Parte Garland, which, like Cummings involved an oath which a person was required to take before engaging in a lawful occupation, attorney Reverdy Johnson put the point starkly: “the legislature undertakes to say to [the defendant], ‘You shall no longer enjoy that right, unless you will swear that you have not done the things stated in the oath which we require you to take;’ and he is gravely told, ‘You are not obliged to take it.’ Certainly, he is not obliged to take it. No man is obliged to follow his occupation; but unless he takes it he must starve, except he have other means of living.”[128] Thus by 1870, when the cases which eventually became The Slaughter House Cases were being heard in lower federal courts, Circuit Justice Bradley could write that

it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit—not injurious to the community—as he may see fit, without unreasonable regulation or molestation, and without being restricted by any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free governments…. It is also his privilege to have, with all other citizens, the equal protection of the laws. Indeed, the latter privileges are specified by the words of the [Fourteenth] amendment. These privileges cannot be invaded without sapping the very foundations of republican government. A republican government is not merely a government of the people, but it is a free government. Without being free, it is republican only in name, and not republican in truth, and any government which deprives its citizens of the right to engage in any lawful pursuit, subject only to reasonable restrictions, or at least subject only to such restrictions as are reasonably within the power of government to impose—is tyrannical and unrepublican. And if to enforce arbitrary restrictions made for the benefit of a favored few, it takes away and destroys the citizen’s property without trial or condemnation, it is guilty of violating all the fundamental privileges to which I have referred, and one of the fundamental principles of free government.[129]

All of this changed with the Slaughter House Cases.[130] Slaughter House questioned the constitutionality of a Louisiana law which granted a twenty-five year monopoly to a state butchery company. Any cattle brought to New Orleans and several surrounding counties could only be slaughtered in the facilities run by this company—effectively outlawing private slaughterhouses.

The proponents of the law claimed that it was enacted to protect public health and safety, just as the proponents of the regulation of upholsterers in Allen v. Tooley, or of tailors in Davenant v. Hurdis. The private butchers sued, saying that their right to pursue a lawful occupation, protected by the privileges and immunities clause of the Fourteenth Amendment, was being violated. Many of these cases were settled in lower courts, and we have already quoted from some of those decisions. But the Supreme Court, in a 5 to 4 decision, upheld the constitutionality of the Louisiana law. Peter Irons writes that “[a]s they had in 1810, when they ignored ordinance of corruption in the Yazoo land grants, the justices shut their noses to the stench of bribery in The Slaughter House Cases.”[131] Justice Miller, writing for the majority, declared that it was “difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation,”[132] because the law did not forbid butchers from slaughtering cattle themselves in the state corporation’s slaughterhouses; a private butcher was free to “slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place and to pay a reasonable compensation for the use of the accommodations furnished him at that place.”[133] Miller saw the Louisiana statute as nothing more than a legitimate health regulation.

Miller held that Coke’s Case of Monopolies was inapposite. Monopolies in England, he held, had been outlawed because they were conveyed by the king, against the will of the people. A legislature, however, represented the will of the people. “It may, therefore, be considered as established, that the authority of the legislature of Louisiana to pass the present statute is ample, unless some restraint in the exercise of that power be found in the constitution of that State or in the amendments to the Constitution of the United States, adopted since the date of the decisions we have already cited.”[134] In other words, whatever the legislature passed was legitimate, unless the legislature was specifically prohibited from acting in that regard. Even if such a blank-check view of state power were appropriate at the state level, the question then became whether the federal Constitution prohibited the state from establishing such a monopoly. Miller rejected the claim that the privileges and immunities clause was intended to protect citizens against the legislatures of their own states. The clause “speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. [… T]he latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.”[135]

Justice Stephen Field, in a famous dissent, reviewed the history of monopoly practices. “[W]hen the Colonies separated from the mother country no privilege was more fully recognized or more completely incorporated into the fundamental law of the country than that every free subject in the British empire was entitled to pursue his happiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others.”[136]

This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest; and unless adhered to in the legislation of the country our government will be a republic only in name.[137]

It is neither necessary nor possible to fully discuss the aspects of The Slaughter House Cases here; other commentators have written very extensively about the subject,[138] and as Justice Thomas recently said, they have agreed on little except that the Slaughter House decision was wrong.[139] But it is pertinent to notice a few things about the case. First, the holding, which Robert Bork has praised as “a narrow victory for judicial moderation,”[140]—because it allowed the corruption of the Louisiana legislature to proceed unchecked by judicial interference—did not escape controversy in its own time. More importantly, the majority in Slaughter House did not deny that the right to earn an honest living was, indeed, a common law right. In fact, the majority implicitly agreed that it was, and held instead only that the privileges and immunities clause was not meant to protect that right, at a federal level, against state encroachments. And secondly, the majority held that the Louisiana statute had not actually violated that right.

Thus Slaughter House did not actually hold that state monopolies could never violate such a right, or that such a right did not exist. In fact, the Court came increasingly to observe the validity and importance of that right. The subsequent era of “economic substantive due process” has been charted well enough by Bernard Seigan,[141] but it is important to note that by 1888, the Court’s majority would say, in Powell v. Pennsylvania, that “[t]he main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding and selling property, is an essential part of his rights of liberty and property, as guaranteed by the Fourteenth Amendment. The court assents to this general proposition as embodying a sound principle of constitutional law.”[142] Slaughter House was really an example of the age-old tension between legitimate business regulation and the wrongful restraint of liberty. And as economic regulation became more prevalent from the turn of the century to the present, the courts were increasingly called upon to make this determination.

Lawrence Friedman describes the way the post-Civil War era brought a growth of protectionist economic measures disguised as health-and-safety regulations. “[O]ccupational licensing,” he writes, “absolutely burgeoned during this period.... Some licensing regulation laws, of course, were frankly and solely designed to produce revenue. Some licensing legislation was, moreover, harsh and discriminatory, a defense mechanism of local merchants against outsiders.”[143] Licensing began with the learned professions, especially those concerned with health issues, like dentistry or pharmacy, because it was easier to make the argument that these practices should be regulated for public safety purposes. Then architecture, midwifery, mining, and blacksmithing. Finally hairdressers, plumbers, and taxi drivers.

The statutes in this new wave of licensing laws had certain characteristics in common. Their justification rested primarily on the developing concept of the state’s police power—its power to safeguard the public health and safety. But the real motivation, or part of it, was economic. Trade groups were anxious to control competition. ... The justification was the same for all of these [professions]: safeguarding public health. The argument was quite obvious in the case of doctors and therefore had much more general appeal. For barbers, the argument was a trifle strained; and for horseshoers, fairly desperate.[144]

It is quite common in these latter days for certain classes of citizens—those engaged in this or that business—to appeal to the government—national, state, or municipal—to aid them by legislation against another class of citizens engaged in the same business, but in some other way. This class legislation, when indulged in, seldom benefits the general public, but nearly always aids the few for whose benefit it is enacted, not only at the expense of the few against whom it is ostensibly directed, but also at the expense and to the detriment of the many, for whose benefit all legislation should be, in a republican form of government, framed and devised. This kind of legislation should receive no encouragement at the hands of the courts[…. This law] was simply an exercise of arbitrary and unauthorized class legislation for the benefit of a few shop-keepers, and an unjust discrimination against those who desired to sell from carts or wagons about the village. It is difficult to perceive how such a by-law could be of public benefit.[145]

In a well-known case, Butchers’ Union Co. v. Crescent City Co.,[146] Justice Bradley wrote that monopolies violated the common law “because they destroy the freedom of trade, discourage labor and industry, restrain persons from getting an honest livelihood, and put it in the power of the grantees to enhance the price of commodities. They are void because they interfere with the liberty of the individual to pursue a lawful trade or employment.”

The granting of an exclusive right to engage in such vocations [as shoemaking or raising vegetables] would be repudiated in all communities as an invasion of common right. The State undoubtedly may require many kinds of business to be carried on beyond the thickly settled portions of a city, or even entirely without its limits, especially when attendant odors or noises affect the health or disturb the peace of the neighborhood; but the exercise of this necessary power does not warrant granting to a particular class or to a corporation a monopoly of the business thus removed. [147]

And in Dent v. West Virginia,[148] the Supreme Court would finally definitively declare that

It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken.[149]

State cases, too, enunciated this principle, holding that “[s]tatutes which impose restrictions upon trade or common occupations, or which levy an excise or tax upon them, must be strictly construed.”[150] In these cases, the question before the court was: “Is the act in question an arbitrary interference with the right of contract, and is there no reasonable ground upon which the legislature, acting within its conceded powers, could pass such a law?”[151] In other words, is the challenged regulation of business a legitimate exercise of the state’s power to prevent public nuisances—or was that merely a guise for monopolistic practices, limiting the right of the individual to pursue a lawful calling? That analysis often required the Court to look beyond the facial explanation of the law. These cases, which are today referred to as the “economic substantive due process” cases, were substantive due process in the sense that they examined the substance of legislation to see if the legislature, “under the pretext of executing its powers, [had] pass[ed] laws for the accomplishment of objects not intrusted to the government,” in which case “it would become the painful duty of this tribunal ... to say that such an act was not the law of the land.”[152] To discover such a pretext requires that the court examine the substance of legislation, and not merely the procedures by which it was promulgated.[153] One of the most famous of these “economic substantive due process” cases—which is not often referred to as such—is Yick Wo v. Hopkins.[154]

Hopkins involved a statute which regulated Chinese laundries in San Francisco, California. Laundries could not be housed in wooden structures, and must be licensed by a board of supervisors. Although legislature explained this as a measure for protecting public health and safety, the Supreme Court found that the regulation was really part of a statutory scheme of discrimination against Chinese immigrants, whose laundry cleaning businesses were generally made of wood. In fact, nearly all of the laundries in the city were made of wood, as were most of the residences. Why, then, did the regulation affect only laundries? And were wooden laundry facilities really more dangerous than those made of stone? “We are [] constrained, at the outset,” the Supreme Court said, “to differ from the Supreme Court of California upon the real meaning of the ordinances in question.”[155] The statute was not a means of protecting society; instead it vested the board of supervisors with “a naked and arbitrary power to give or withhold” a business license.[156] The statute was a sort of Jim Crow law, a disguised attempt to infringe on the rights of Chinese immigrants to earn a living freely. “[T]he very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”[157] Yick Wo was thus a reverse version of The Slaughter House Cases. Just as literacy tests for voting had been used in the South, under the pretext of ensuring an educated electorate—but actually intended to keep former slaves from voting—so this law, supposedly regulating businesses for safety’s sake, was in fact a pretextual attempt to exclude Chinese workers from the marketplace. Yick Wo was one of a number of economic liberty cases protected the right to earn a living on equal protection grounds. As the Illinois Supreme Court put it in an 1875 case, “[i]f one of the citizens of Chicago is permitted to engage in the business of slaughtering animals in a certain locality, an ordinance which would prevent, under a penalty, another from engaging in the same business, would not only be unreasonable, and, for that reason, void, but its direct tendency would be to create a monopoly, which the law will not tolerate.”[158] After quoting Justice Field’s opinion in Butcher’s Union, a 1891 Colorado case held, “[i]f the city council can say that certain individuals may pursue a certain vocation and that other individuals of the same class, of equal repute and citizens of that community, shall not, then the one great principle conferred upon the citizens of the United States, to wit, the right to pursue any lawful business or vocation in any manner not inconsistent with the equal rights of others which may increase their prosperity or develop their faculties so as to give them the highest enjoyment, is disallowed.”[159]

In Allgeyer v. Louisiana[160] the Court reiterated that the “the right to follow any of the ordinary callings of life is one of the privileges of a citizen of the United States,” and that this right was one of the “rights which are covered by the word ‘liberty’ as contained in the Fourteenth Amendment.”[161] Yet again the Court repeated that the pursuit of a lawful occupation could be subjected to legitimate licensing restrictions for the protection of the public—but such regulations should not be disguised restrictions on individual freedom: “[W]e do not intend to hold that in no such case can the State exercise its police power. When and how far such power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises.”[162]

With this background, the “notorious” case of Lochner v. New York seems much less arbitrary and scandalous than it is usually described in the scholarly literature. Lochner involved a statute which regulated the number of hours that bakers could work. This law was a protectionist measure run through the legislature by bakery companies which largely relied upon machinery, instead of human labor. As one author puts it,

By foisting ten-hour workdays on their competitors, the larger firms could raise the costs of these smaller rivals, putting many of them out of business and throwing their employees out of work. Were such a result achieved by private contract, it would violate the antitrust laws. It can hardly be said that such a statute alters the status quo in favor of the less powerful or enhances the “liberty” of employees.[163]

The legislature, of course, claimed that the statute was a health and safety regulation. But the Court did not blithely accept this purported explanation; it looked into the real substance of the law. It concluded that

the limitation of the hours of labor as provided for in this section of the statute ... has no such direct relation to and no such substantial effect upon the health of the employe, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employes ... in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employes. Under such circumstances the freedom of master and employe to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.[164]

Lochner is generally cited as the beginning of an era of laissez-faire jurisprudence, but in fact it was the continuation of a trend whose roots went back for centuries.[165] It was followed by a number of high profile cases striking down economic regulations. In Adair v. United States,[166] the Supreme Court struck down a law which made it illegal to discriminate against employees who were not members of a labor union. The liberty clause of the Fourteenth Amendment “embrace[s] the right to make contracts for the purchase of the labor of others, and equally the right to make contracts for the sale of one’s own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject-matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests, or as hurtful to the public order, or as detrimental to the common good.”[167] In Truax v. Raich,[168] the Court struck down an Arizona statute which prohibited companies from employing more than 20 percent non-citizens. In this rerun of Yick Wo, the Court said that “[t]he right to earn a livelihood and to continue in employment unmolested by efforts to enforce void enactments should similarly be entitled to protection in the absence of adequate remedy at law.”[169] Just as the statutes in Yick Wo and Lochner were defended as health-and-safety measures, so too was the law in Truax:

It is sought to justify this act as an exercise of the power of the state to make reasonable classifications in legislating to promote the health, safety, morals, and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does not go so far as to make it possible for the state to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.[170]

The rule that impositions on the common law right of livelihood should be strictly construed was also maintained at the state level during this period.[171] Economic substantive due process was a means by which the real effect of a regulation of private contracts could be analyzed to see whether it was really a legitimate exercise of police power, or a protectionistic or monopolistic scheme. As the Court put it in Adams v. Tanner,[172] “Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one’s right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. ... Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.”[173]

This was the backdrop for the famous pre-New Deal cases. In United States v. Butler,[174] for instance, the Supreme Court struck down a New Deal statute called the Agriculture Adjustment Act. The Act required “processors” of crops—mill owners, for instance—to pay a tax, which funds would then be turned over to farmers. The plaintiffs sued, saying that the Constitution did not permit the Congress to create a scheme for redistributing wealth.[175] The government replied that this was only a tax system, and therefore part of the Constitutional provision for “laying and collecting taxes” as well as the “General Welfare clause.”

The Supreme Court found the statute unconstitutional. The government’s justification of the statute as a tax measure was merely a disguise. “The tax can only be sustained by ignoring the avowed purpose and operation of the act, and holding it a measure merely laying an excise upon processors to raise revenue for the support of government.”[176] Just as in Yick Wo and Truax, the Court would not simply accept the government’s justification of the law. “It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted.”[177] After reviewing the law, the Court “conclude[d] that the act is one regulating agricultural production; that the tax is a mere incident of such regulation and that the respondents have standing to challenge the legality of the exaction.”[178]

It might seem odd to call any of these decisions “economic substantive due process,” since the Court did not address economic concerns, or use any law-and-economics methodology. But neither did the Court rely primarily on economics when striking down the New Deal statutes. Take, for instance, the case of Adkins v. Children’s Hospital,[179] in which the Court struck down a minimum wage law that only applied to female workers. The result of this statute, of course, was that female workers lost their jobs and were replaced by men, not covered by the statute and therefore cheaper to employ. The Congress justified the law as an attempt to protect women’s “safety and morals.” In an opinion by Justice Sutherland, the Court struck down the law, not only for its unequal treatment, but its infringement on the right of a woman to decide what to do with her own body—in this case, to work as an elevator operator. Wrote Sutherland, “[t]hat the right to contract about one’s affairs is a part of the liberty of the individual protected by this clause, is settled by the decisions of this Court and is no longer open to question.”[180]

Just like the statute in Lochner, the statute in Adkins had nothing to do with health and safety; they were both protectionist economic measures meant to benefit politically favored classes by restricting the freedom of others to compete. “It is not a law dealing with any business charged with a public interest or with public work, or to meet and tide over a temporary emergency. It has nothing to do with the character, methods or periods of wage payments. It does not prescribe hours of labor or conditions under which labor is to be done. It is not for the protection of persons under legal disability or for the prevention of fraud. It is simply and exclusively a price-fixing law, confined to adult women (for we are not now considering the provisions relating to minors), who are legally as capable of contracting for themselves as men.”[181] As Hadley Arkes points out,

[I]n none of these critical passages did Sutherland employ a brand of reasoning that could have been described in any way as “economic.” There were no ventures into the theories of monetarism or fiscal policy with the manipulation of aggregate demand and “multipliers.” There was not even a feint toward theories of price and the supply of labor. Sutherland was aware that these policies would produce what some people call “incentives” and “disincentives” .... But Sutherland did not presume to offer any models of “behavior” on the part of consumers, workers, and employers.... He offered no theory of “economic behavior,” and it bears noting that he held back from offering any estimate about the effects of these policies.[182]

Instead, Sutherland was “offering nothing less than a moral instruction[. H]e was settling the case in terms that were as purely jural as an opinion could be. ... Sutherland and his colleagues would find, in the contrivances of the New Deal, arrangements that offended, deeply, the principles of lawfulness.”[183] They offended the right of the individual to use her land, her property, or her talents as she saw fit.

Cases like Adkins, Yick Wo, or Lochner, were “substantive due process” cases, but were not examples of “judicial activism.” They were examples of the court restraining legislative activism which was abridging the common law right to pursue a lawful occupation; a right with at least seven hundred years of traditional protection.

To ratify the extreme sorts of regulation which constituted the New Deal, it was necessary to overcome that tradition, or to deny its existence. When the Court finally gave in to New Deal pressures in the famous “Switch in Time That Saved Nine,” it was in fact reversing the old common law rule that the common law “is the perfection of reason, and is always jealous of its own importance; and requires every statute which invades its authority to be carefully watched and strictly construed.”[184] In United States v. Carolene Products, most famous for its fourth footnote, the Court reversed this completely, holding that

[e]ven in the absence of [evidentiary] aids the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.[185]

Saying that economic regulations would bear such a strong presumption of constitutionality, the Court split individual rights into “fundamental” rights and “economic” rights. Yet, as generations before had understood, the two can not be separated. The “economic right” to run a business had never been based only on economic justifications; it was the right of a person to act, and provide for himself or his family. The spurious nature of Carolene’s dichotomy has been sufficiently demonstrated elsewhere,[186] but it is remarkable how, after 1937, the Courts’ treatment of the right to earn an honest living has been confused.

The rise of legal positivism, led by Oliver Wendell Holmes, Louis Brandeis, Roscoe Pound, and others, was the first time that the very existence of such a right was to be directly challenged. In McAuliffe v. New Bedford, Holmes wrote, “[t]he petitioner may have a constitutional right to talk politics but he has no constitutional right to be a policeman.” [187] This is strictly correct, since the common law guarantees only the right to work, not the right to be hired, but Holmes’s dictum, as Justice William Douglas would later write, “ha[d] pernicious implications,”[188] and was generally taken to be a denigration of the common law right to seek employment. Roscoe Pound went further, insisting that “there never has been at common law any such freedom of contract as [cases like Lochner or Butcher’s Union] postulate.”[189] Pound argued that the individual had no right, “by contract, [to] impose[] substantial restraints upon his liberty,” because “[f]reedom to impose these restraints, in the hands of the weak and necessitous, defeats the very end of liberty.”[190] In other words, the poor could not be trusted with the right to decide for themselves the number of hours they wished to work. Today’s critics deny the existence of this right overtly. Peter Irons derides the Lochner Court for “[h]aving inserted ‘liberty of contract’ into the Constitution[.]”[191] John Semouche writes that in his Lochner dissent, “Holmes was arguing against the use of the Fourteenth Amendment to protect newly discovered individual rights from control by state legislatures,”[192] and refers to “this new freedom of contract.”[193] Paul Kens claims that the right to pursue a lawful calling was solely the brainchild of Stephen Field’s Slaughter House dissent. “[H]e invented a new right,” Kens claims. “Nowhere does the Constitution expressly guarantee a right to engage in a trade or profession.”[194] Here is one representative example of the current mainstream view of the economic substantive due process cases:

I do not count the Supreme Court decisions defending contract or property rights from state regulations as Bill of rights decisions. None of these cases represents a defense of civil liberties. The Court merely used libertarian philosophy to protect the wealthy from progressive legislation. The Court eventually rejected these economic liberty decisions because they were not connected with the text of the Constitution or any philosophy with roots in the history and traditions of our nation and its democratic process. I doubt that the majority of the American people, who today celebrate the “bicentennial” of the Bill of Rights, would celebrate the judicial use of the Due Process clause to invalidate minimum wage laws, health regulations, and laws requiring racial integration.[195]

Regardless of the attitudes of a majority of Americans today, it is simply untrue to say that the multiple protections for property and economic liberties in the Constitution—backed as they were by over a century and a half of common law protections for economic liberties—were “not connected” with the history of America. And although during the Progressive Era, many similarly minded critics argued against this “extreme freedom of contract,” or “unlimited freedom of contract”—which, they claimed, had never been supported at common law—this was a straw man. It was true that unlimited freedom of contract had never been recognized at common law, and that, as Samuel Williston wrote, “[t]he English courts prior to the 19th century had no hesitation, when they deemed a particular kind of contract opposed to public policy, in refusing the enforce it.”[196] The common law had always protected consumers, had always struck down contracts if contrary to public policy—for instance, contracts in restraint of trade—and had always permitted regulations for the protection of the public. But neither the minority in Slaughter House nor the majority in Lochner—nor, for that matter, any decision in any case, state or federal—had ever held otherwise.[197] What Lochner had said was that it was the duty of the Court to look behind the facial justification of the law at the substantive effect of the law. Just as the Yick Wo Court had looked behind the alleged health-and-safety justification for the law and seen the anti-Chinese intent, so the Lochner Court found that the regulation had no relation to “the health of the employee, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor.”[198] The Lochner Court explicitly recognized the right of the state to pass legitimate health and safety regulations, which were equally binding upon all those involved in that trade. The legal positivists were not trying to protect the state’s right to make such regulations; they were pushing for a new canon of construction, which they got in Carolene Products.[199]

An analogy quickly presents itself in the abortion cases. In the field of abortion, the Court has expressed its “undue burden” test, that statutes must not place an undue burden on a woman’s right to seek an abortion.[200] The meaning of “undue burden” will of course depend on the circumstances of the case and the state action involved. All that the Lochner cases did was require that states not place an undue burden on the individual’s right to pursue a lawful occupation. Whether a state had violated this restriction in a particular case also depended on particular circumstances—in the words of Allgeyer v. Louisiana, “[w]hen and how far such power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises.”[201]

Lochner and its sister cases, therefore, never stood for what the positivists claimed it stood for—an “unlimited” freedom of contract. They stood merely for the proposition that state action which imposed a burden on the individual’s right to make contracts must be justified by some evidence that the statute was a legitimate exercise of health and safety regulations. Carolene Products announced that such evidence would simply be presumed to exist—a presumption so strong that, to overcome it, a challenger must demonstrate the utter irrationality of the challenged regulation.[202] This sort of reasoning reached its height (perhaps) when the Court found, in Wickard v. Fillburn, that the Congress’s interstate commerce power could even reach into the private gardens of individuals who grew wheat only for their own private consumption.[203] This finding contrasted sharply with The City of London’s Case. There, although the court of King’s Bench had held that monopolies were against common law, the Court refused to find Jacob Wagoner liable for breaking the regulation of candle-makers, because the evidence “doth not shew that he sold any candles, &c. for if he made them for his own use, without selling for lucre or gain, he might well do it, as every one may bake or brew, &c. for his own use, without selling bread or beer[.]”[204]