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Even after Carolene Products, and even while the Court upheld legislation which infringed on free economic action, it did not abandon the idea of the right to pursue a lawful calling. In Meyer v. Nebraska,[205] for instance, the Court attempted to list some of the rights which were protected by the word “liberty” in the Fourteenth Amendment:

it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.[206]

In Takahashi v. Fish and Game Commission,[207] the Court reviewed a California law which repealed the state’s previous practice of granting fishing licenses to residents regardless of citizenship. In 1943, the state began issuing these licenses only to citizens, which meant that Japanese immigrants, who by federal law could not become citizens, could not fish. Mr. Takahashi was a fisherman who now would no longer be allowed to make his living this way. The state asserted that its “proprietary interest in fish in the ocean waters within 3 miles of the shore ... justified the State in barring all aliens in general and aliens ineligible to citizenship in particular from catching fish.”[208] As in Lochner, the Court did not stop at this asserted interest, however; and, as in Yick Wo and Truax, it found that the law was actually an attempt to discriminate against Japanese immigrants. “‘To all intents and purposes and in effect the provision in the 1943 and 1945 amendments are the same, the thin veil used to conceal a purpose being too transparent. Under each and both, alien Japanese are denied a right to a license to catch fish on the high seas for profit, and to bring them to shore for the purpose of selling the same in a fresh state.”

[T]his discrimination constitutes an unequal exaction and a greater burden upon the persons of the class named than that imposed upon others in the same calling and under the same conditions, and amounts to prohibition. This discrimination, patently hostile, is not based upon a reasonable ground of classification and, to that extent, the section is in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States.[209]

Still, Carolene Products had announced the regime under which America still lives—that economic regulations would be subjected only to “rational basis review.” The right of the individual to earn an honest living has suffered greatly at the hands of rational basis review,[210] and an example of the hostility with which the “economic substantive due process” cases are held can be seen in Justice David Souter’s concurring opinion in Washington v. Glucksberg.[211] Souter likened the economic due process cases to the infamous Dred Scott[212] case, in which the Supreme Court had upheld a constitutional right to own slaves. Those cases which had explicitly protected an individual’s right to form his own contracts without interference and to work for his own profit “harbored the spirit of Dred Scott in their absolutist implementation of the standard they espoused.”[213] Souter wrote almost as powerfully in his dissent in Seminole Tribe v. Florida:

It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the common-law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., Adkins v. Children’s Hospital (finding abrogation of common-law freedom to contract for any wage an unconstitutional “compulsory exaction”). And yet the superseding lesson ... that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law’s ordering of economic and social relationships, seems to have been lost on the Court.[214]

But the economic substantive due process cases were not at all what Souter claims. Neither Lochner nor Adkins held that the common law could not be reached by the legislature, or that it trumped the Constitution. They simply said that laws which infringed on common law rights—which rights had been incorporated by the Constitution’s text and by the Fourteenth Amendment—must in fact have the health-and-safety effect which the legislature claimed, and not be mere pretexts for seizing economic power for economic or political pressure groups.[215] Souter’s characterization of Adkins as holding that it “treated the common-law as paramount,” is belied by Adkins’ own text: “There is, of course, no such thing as absolute freedom of contract ... It must frequently yield to the common good.”[216]

Still, in deriding the right to earn an honest living, Souter is in the company of most legal scholars. In modern academia, the common law right to earn an honest living has received only minimal notice. In two masterful 1994 articles, Professor Wayne McCormack referred to it as “the right of livelihood,”[217] arguing that “the range from economic to personal liberty choices is a spectrum, not a dichotomy.”[218] Just because a person chooses to act in such a way that brings him profit, McCormack argued, does not mean that the act should lose its protection as the act of a person entitled to freedom. “Property and liberty may be two words that express the opposite ends of a spectrum of human conduct from the most autonomous (liberty) to the most interconnected (property).”[219] This is simply a restatement of Madison’s belief that just government does not “deny to part of its citizens that free use of their faculties, and free choice of their occupations, which ... are the means of acquiring property strictly so called.”[220]

Ironically, however, the term “right to livelihood” has more frequently become attached to an argument in favor of a right to welfare payments—that is, a right to a guaranteed standard lifestyle, meaning essentially that each citizen has the right to be maintained above a specified poverty level, at the expense of other citizens.[221] This is most certainly not what Coke and common law decisions had in mind. They meant specifically a negative right in a person not to be interfered with while he went about the business of earning an honest living under those minimal restrictions only which were necessary and proper for protecting the consumer or preventing public dangers and nuisances.[222] This is, as Chancellor Kent said, a guaranty of freedom of action—in short, it is the freedom of contract. It is what Locke called “a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”[223] While all along the common law had stipulated that government may impose regulations on the practice of that right—as Locke says, “within the allowance of those laws under which he is”—those regulations could be unreasonable infringements on freedom when they deprived a person of his freedom to pursue a lawful occupation. This requires some exercise of judgment with regard to the reasonableness of those restrictions. This substantive due process protection is in the tradition of what is now nearly eight hundred years of common law, and in the defense of a right which was certainly “deeply rooted in this Nation’s history and tradition.”[224]

This right, however, has proven too important for the Court to ignore completely, however. In a variety of cases, the Supreme Court and state courts have invoked this right, and even struck down licensing schemes which infringe upon it. One of the legal areas in which this issue has arisen was in the anti-communist hysteria of the first half of the 20th Century. Barsky v. Bd. of Regents of the State of New York, involved a doctor whose license was revoked when he refused to submit to an investigation into his alleged communist sympathies. The Court upheld this action, but the arch-liberal Justice William Douglas dissented, writing that:

The right to work I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. ... It does many men little good to stay alive and free and propertied, if they cannot work. To work means to eat. It also means to live. [… S]o the question here is not what government must give, but rather what it may not take away.[225]

This is exactly the holding of Lochner v. New York, Adkins v. Children’s Hospital, and other now reviled cases: laws which infringe on a person’s right to pursue a lawful calling should be subjected to substantive judicial scrutiny. Douglas’ view was echoed decades later in Board of Regents v. Roth.[226] There, the Court reviewed the complaint of a professor from a state college who was fired for criticizing the administration of the school. The Court held that the professor did have the right “to engage in any of the common occupations of life,” and that “[t]here might be cases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated.”

Today, licensing statutes are all too frequently used as a method of monopolizing trade for a few privileged individuals or corporations. The regulation of taxicabs is an example common in American states. In Colorado, a man named Leroy Jones, who made a living by selling hotdogs at Denver’s Mile-High Stadium, decided to start his own taxi company. But in order to operate a taxicab in Colorado, one must be granted a “certificate of public convenience and necessity”: approval by a state board that a new taxi company is needed in the city. Of course the state board is only run by a handful of taxi operators with no interest in increasing their competition. But even if it were to operate under the purest of motivations, how does one go about proving that a city needs a new business, of whatever sort?[227] Nobody could have known, in the 1960s, that Americans needed electronic mail, cellular telephones, or compact disc players, and these things would never have come about, had their introduction into commerce been predicated on approval by a state board made up of the manufacturers of stationery, rotary dial phones, or record players. Jones sued, basing his claim on, inter alia, his common law right to pursue a lawful occupation, as protected by the Fourteenth Amendment.[228] Of course, he lost. The court held that “‘the argument that the clause creates a substantive right to pursue one’s lawful occupation or profession free from state limitations was laid to rest long ago by the United States Supreme Court.’”[229]

In Tennessee, a person may not sell a coffin unless he is a licensed funeral director. This requires that the person attend classes in embalming, and other courses which would be utterly useless to a person who wants simply to sell a box, and to pay a large fee. A number of casket retailers sued, arguing again that the government was wrongfully interfering with their Fourteenth Amendment rights.[230] The state defended the regulation as a necessary public health and safety measure. The district court found in their favor, writing that “[t]he requirement certainly has nothing to do with public health and safety. A casket is nothing more than a container for human remains.”[231] The court even characterized some of the state’s arguments as “somewhat of a joke,”[232] and suggested that while “[i]t is not for this trial court to breathe new life into the Privileges and Immunities Clause 127 years after its demise ... the argument of the Slaughter House dissenters may reflect historical truth[, and] it may be time, as Justice Thomas suggests ... to take another look at the Privileges and Immunities Clause and its place within the Fourteenth Amendment.”[233]

The danger of licensing schemes becoming a method for monopolizing trade is exemplified in a series of recent anti-trust cases.[234] In 1963, the American Medical Association formed a “committee on quackery,” to investigate the claims of unscientific charlatans. The committee deemed that the claims of chiropractic were scientifically unsound, and that under the Principles of Medical Ethics, no doctor could be permitted to refer patents to chiropractors, or even to associate with chiropractors. While they had sound scientific reasons for reaching this conclusion, this clearly interfered with not only the rights of chiropractors to pursue their businesses, but with the right of doctors to refer their patients to specialists if, in their medical judgment, such a referral was proper. But more importantly, the AMA’s special position—essentially in control of the career of every doctor in the country—led it to become a monopoly. Wrote one Circuit Court,

Getting needed information to the market is a fine goal, but the district court found that the AMA was not motivated solely by such altruistic concerns. Indeed, the court found that the AMA intended to “destroy a competitor,” namely, chiropractors. It is not enough to carry the day to argue that competition should be eliminated in the name of public safety.[235]

Today, the Supreme Court and other courts continue to refer, in dicta, to the individual’s right to pursue a lawful occupation.[236] In some dicta, it has even been referred to as a “fundamental” right.[237] In different contexts it has abided by the rule that statutes in derogation of common law rights should be strictly construed,[238] and it has noted that “[l]iberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”[239] In Toomer v. Witsell,[240] the Court held “that commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause.”[241] As recently as 1999 the Supreme Court held that the Fourteenth Amendment protects the right to “choose one’s field of private employment ... subject to reasonable government regulation.”[242] But the Court upheld the regulation in that case. Likewise, in United Building and Finance Company v. Mayor of Camden,[243] the Court wrote:

Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the [Privileges and Immunities] Clause [of Article IV]. Many, if not most, of our cases expounding the Privileges and Immunities Clause have dealt with this basic and essential activity. Public employment, however, is qualitatively different from employment in the private sector; it is a subspecies of the broader opportunity to pursue a common calling.[244]

In Lowe v. SEC,[245] the Court struck down an injunction which had been secured by the Securities and Exchange Commission against a group of former investment advisors. These advisors had lost their SEC licenses, and thus could no longer offer professional investment advice. Instead they began to publish a newsletter expressing their opinions on a stock market investments. The SEC enjoined them, on the grounds that the loss of their licenses prohibited them from this profession. The investors responded that their right to publish was protected by the First Amendment, and the Court agreed.

This issue involves a collision between the power of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the press guaranteed by the First Amendment. The Court determined long ago that although ‘[it] is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, . . . there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed . . . for the protection of society.’ Regulations on entry into a profession, as a general matter, are constitutional if they ‘have a rational connection with the applicant’s fitness or capacity to practice’ the profession.[246]

State courts have also protected this right. Texas courts have held that citizens “hav[e] a vested property right in making a living.”[247] In 1938, a New York court held that a statute requiring podiatrists to obtain licenses could not be applied to shoe salesmen.[248] This rule was followed in a Connecticut case, Connecticut Chiroprody Society v. Murray, in which the court held that “[a] statute which restricts the conduct of an occupation which was lawful at common law should be construed with reasonable strictness.”[249] Wyoming has also held that “[s]tatutes which impose restrictions on trade or common occupations, or which levy an excise tax upon them, are generally construed strictly.”[250]

In Estes v. Gadsden, the Alabama Supreme Court upheld the constitutionality of a broad licensing tax “for the privilege of engaging in or following any trade, occupation or profession within the corporate limits of the city and covers all salaried or wage-earning employees.”[251] At the same time, though, the court noted that “[t]he right to earn a livelihood is an inalienable right guaranteed by the Bill of Rights[.]”[252] Likewise, the California Supreme Court has declared the right to earn a living a “fundamental” one.[253] Like Texas, Arizona considers the right of occupation a property right.[254] And at least one Georgia case has held that a person’s “right to earn a living is not to be denied him without his day in court.”[255] But other courts, for instance, in Hawaii, have declared that the right to earn a living is not a fundamental right.[256]

New York courts have recognized this right,[257] and have even stated that “Monopolistic restrictions on the right to earn a living are odious devices.”[258] Yet recently, the Supreme Court of New York stated that “[t]he right to do business has never been considered a fundamental right.”[259] This confusion persists elsewhere. In Florida, for instance, where the Supreme Court has declared that “[t]he fundamental right to earn a livelihood in pursuing some lawful occupation is protected by the Constitution, and in fact, many authorities hold that the preservation of such right is one of the inherent or inalienable rights protected by the Constitution.”[260] The Eleventh Circuit has likewise said that “The Fourteenth Amendment liberty guarantee includes an individual’s right ‘“to engage in any of the common occupations of life,”’”[261] Yet the Eleventh Circuit has also stated that “[t]he [Supreme] Court, however, has never held that the right to pursue a particular occupation is a fundamental right, and it has not applied strict scrutiny review to classifications affecting an individual’s pursuit of his or her occupation.”[262]

This, in fact, is the reason for such confusion. While it is sometimes politically expedient for courts to refer to the right of occupation as a fundamental right—and while previous generations very much thought it fundamental—to apply the strict scrutiny which is used whenever government interferes with other fundamental rights would require the rolling back of the great part of the administrative state to which Carolene Products gave the seal of approval.[263] We see then two great ironies. The first is that courts’ reluctance to apply strict scrutiny in this matter has required that when courts do wish to protect the right to earn a living, they must do so under clauses of the constitution, or legal theories, which were not intended to do that, such as the equal protection clause. Yet this is precisely what the left complains of with regard to the economic substantive due process cases—that they added to the definition of “due process” rights which were not intended to be protected under that clause.

While courts often refer in dicta to the right to earn a living, they rarely step in to protect that right from the interference of groups legally protected from competition. This is due simply to a single reason: rational relationship scrutiny. As one commentator has written, “Slaughter House would be a difficult case today, except that the hard questions would be hidden by the assumption, built into ‘rational basis scrutiny,’ that the states generally do not act for forbidden purposes.”[264] But that assumption is a notorious and blatant fiction.[265] The Constitution was formed in large part to protect the individual’s right to pursue a business without wrongful interference—in Bushrod Washington’s phrase, “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 provide for the general good of the whole.”[266] That right deserves protection by our courts today, just as it received protection from our courts for many centuries before the New Deal.

The following is a list of state cases between 1823—when Corfield v. Coryell was decided—and 1873—the year the Slaughter House Cases were decided—in which the courts discussed or protected the common law right to earn a living.

Hayden v. Noyes, 5 Conn. 391, 1824 WL (83 Conn.) at *5 (“Every person has a common law right, to fish in a navigable river or arm of the sea, until, by some legal mode of appropriation, this common right is extinguished”); Smith v. Spooner, 20 Mass. 229, 230 (Mass. 1825) (“Every man of full age and sound mind is at liberty to make contracts ... unless by statute provision he is disabled. And disabling statutes of that nature should be construed strictly, for though founded in policy and a just regard to the public welfare, they are in derogation of private rights”); Dunham & Daniels v. Rochester, 5 Cow. 462 (N.Y. 1826) (“it does not follow that any man is to depend, for the fair and innocent exercise of his business, on the will of the [city, or] that they have the power of licensing his trade, at their pleasure; prohibiting it altogether, or crippling it by heavy charges and grievous penalties.” Id. at 466); In re Nightengale, 1831 WL 2668 at *3 (Mass.) (the challenged regulation “does [not] operate as an improper restraint of trade, but is a wholesome regulation of it.”); Austin v. Murray, 33 Mass. 121 (1834) (“The law will not allow the rights of property to be invaded under the guise of a police regulation for the promotion of health, when it is manifest that such is not the object and purpose of the regulation.”); Mayor of Hudson v. Thorne, 7 Paige 261, 1837 WL 2587 (N.Y. Chancery Court 1837) (“If the manufacture of pressed hay within the compact parts of the city is dangerous in causing or promoting fires, the common council have the power expressly given by their charter to prevent the carrying on of such manufacture; but as all by-laws must be reasonable, the common council cannot make a by-law which shall permit one person to carry on the dangerous business, and prohibit another, who has an equal right, from pursuing the same business.” Id.); Mayor of Columbia v. Beasly, 20 Tenn. 232 (Tenn, 1839) (“The fifth plea alleges that the tax was imposed with a view to prohibit the defendant from pursuing a lawful occupation, and not for the purpose of raising a revenue....A by-law for oppression is void.” Id. At 241); Mobile v. Yuille, 3 Ala. 137 (1841) (“the enjoyment of all the rights of property, and the utmost freedom of action which may consist with the public welfare, is guarantied to every man, and no restraint can be lawful imposed by the Legislature in relation thereto, which the paramount claims of the community do not demand, or which does not operate alike on all.” Id. at 139); Harding v. The Maverick, 1842 US Dist Lexis 81 (D. Mass., 1842) (“[I]f one, while doing an unlawful act, comes in contact or competition with another, who is pursuing his lawful occupations, the law gives a preference to the latter, and inclines the balance against the former.” Id. at *18); Rockwell v. Hubbell’s Administrators, 2 Doug. 197 (Mich. 1846) (“‘Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not, by every sovereignty, according to its own views of policy and humanity. It must reside in every state, to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community.’” 1846 WL 2864 at *2); Whitney v. Bartholomew, 1851 Conn. LEXIS 17 (Conn, 1851) (“The trade and occupation of carriage-making, or of a blacksmith, is a lawful and useful one; and a building erected for its exercise, is not a nuisance per se.” Id. at **5); Mays v. Cincinnati, 1 Ohio St. 268, 273 (Ohio 1853) (“interference with the natural right of acquisition and enjoyment guarantied by the constitution, can only be justified when public necessity clearly demands it.”); People v. Toynbee, 11 How.Pr. 289, 20 Barb. 168, 1855 WL 6562 (N.Y.Sup. 1855) (striking down anti-liquor law as infringement of right to sell goods); State v. Wheeler, 25 Conn. 290, 1856 WL 981 Conn. (1856) at *2 (“we see no ground on which a prohibition of the owning or keeping of an article for the purpose of a sale, which the legislature had no rightful power to prevent, could be upheld.”) In. re. New Orleans Draining Co., 11 La. Ann. 338, 352 (La., 1856) (attorney arguing that “government cannot say to [a citizen] that he shall follow this or that occupation, because the government thinks that it will be either for his own, or the public good.”); Davis v. Mayor of New York, 14 N.Y. 506 (Ct. App. NY 1856) (holding that city government “had no power to grant to any person a [monopoly] franchise for transporting passengers on the public streets, for profit, for a single day, and the attempt to do so was absolutely void.” Id. at 524); Prevost v. Greneaux, 60 U.S. 1 (1856) (attorney arguing that “[s]o far as statutes for the regulation of trade impose fines or create forfeitures, they are doubtless to be construed strictly as penal, and not liberally as remedial laws.”); Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19, 35 (1856) (“the policy of the law is to encourage trade, by the free competition of all who may choose to engage in it, and it cannot recognize a right in the plaintiffs to interfere for the purpose of preventing a public nuisance, on the ground of an interest they have, as competitors with the defendants, for the public patronage in this business.” Id. at 35); Ex parte Newman, 9 Cal. 517 (1858) (“The right to protect and possess property is not more clearly protected by the constitution than the right to acquire.”); Shepard v. Milwaukee Gas Light Co., 6 Wis. 539 (1858) (“Odious as were monopolies to the common law, they are still more repugnant to the genius and spirit of our republican institutions, and are only to be tolerated on the occasion of great public convenience or necessity....” Id. at 547); City of Davenport v. Kelley, 7 Iowa 102 (1858) (upholding regulation because “[i]t regulates, but does not restrain [trade], and as a regulation there is no conceivable objection to it.” Id. at 107); Phelps v. Rooney 9 Wis. 70 (1859) (court agreeing with counsel that “All statutes which impose restrictions on trade or common occupations, must be construed strictly.”); Russell v. Sloan, 33 Vt. 656 (1861) (refusing to apply anti-liquor law to sale of “quack medicines” because law must be strictly construed); Drexel v. Commonwealth, 1863 Pa LEXIS 199 (1863) (“Statutes which impose restrictions upon trade or common occupations, or which levy an excise or tax upon them, must be construed strictly.” Id. at **11); Wreford v. People, 14 Mich 41 (1865) (Police “power can only be exercised to do away with what are legally nuisances, and does not authorize the council, as it could not, to interfere with what is not a nuisance in fact.” Id. at 46); New Orleans v. Bailey 40 Miss. 395 (1866) (describing tort duties of those engaged in their “lawful calling”); Chicago v. Rumpff, 45 Ill. 90, 96 (1867) (“Hence their by-laws must be reasonable, and such as are vexatious, unequal or oppressive, or are manifestly injurious to the interest, of the corporation, are void. And of the same character are all by-laws in restraint of trade, or which necessarily tend to create a monopoly.”); Bloomington v. Wahl, 46 Ill. 489 (1868) (“The ordinance must be reasonable, uniform in application throughout the limits in which it has operation; it must not be in restraint of trade; it must not create oppressive monopolies, but must be calculated to advance the general welfare of the inhabitants of the municipality.” Id. at 492); Ducat v. Chicago, 48 Ill. 172 (1868) (Privileges and immunities clause means “that the citizens of all the States should have the peculiar advantage of acquiring and holding real as well as personal property, and that such property should ... not be liable to any taxes or burdens which the property of the citizen is not subject to.” Id. at 178); Hayes v. City of Appleton, 24 Wis. 542, 1869 WL 2114 at *1 (Wis., 1869) (“The selling of property at public auction being a lawful business, ... it follows that [the challenged regulation] is an unreasonable and unlawful interference with the freedom of trade, and that the ordinance is for that reason void.”); Pieri v. Shieldsboro, 42 Miss. 493, 495 (1869) (city’s order that lumberyard remove its lumber invalid because “it cannot be seriously contended that the corporate authorities of a town can, by an arbitrary ordinance, destroy private property by force, or compel the owner of it to have it removed, unless it was a nuisance, and so declared in the ordinance….” Id. at 495); United States v. Singer, 27 F. Cas 1082, (N.D. Ill., 1870) (striking down a liquor taxation scheme for being “a series of restrictions and impositions, and a system of inquisition and espionage upon distilling—admitted by the act to be a lawful occupation—which if extended to all other kinds of business, would make the collection of taxes odious and oppressive and indeed well nigh intolerable.”); Parrott v. Barney, 18 F. Cas. 1236 (D. Cal., 1871): (“[W]hy should a person innocently ignorant of the qualities of a dangerous thing unconsciously brought upon his premises in the pursuit of a lawful calling, not only be compelled to sustain the damage suffered himself, but, also, that suffered by his neighbor from an accident resulting therefrom without his fault. ... In my judgment, the law is not so rigorous and unreasonable.” Id. at 1243); Gale v. Kalamazoo, 23 Mich. 344, 355 (Mich. 1871) (“[Monopolies] are founded in destruction of trade, and cannot be tolerated for a moment.”); Barling v. West, 29 Wis. 307, 315 (1871) (striking down ordinance requiring license to sell “lemonade, ice cream, cakes, fruit, etc., [because it] is a perfectly lawful trade, and its restraint or regulation is not demanded by the public welfare.”); Moore v. Letchford, 35 Tex. 185 (1872) (power to exempt certain items from seizure in bankruptcy “must reside in every State, to enable it to secure its citizens ... in those pursuits which are necessary to the existence and well being of every community.” Id. at 216). In Smith v. Foster, 41 N.H. 215 (1860), the New Hampshire Supreme Court held a contract illegal for being made on the Sabbath, and drew a distinction between a one’s ordinary calling and one’s secular calling, and held that “blue laws” were constitutional as restrictions on the latter, not the former. This was more fully explained in George v. George, 42 N.H. 27 (1866) (holding that making a will did not qualify as secular labor). Following this rule of strict construction, in Hee v. Crippen 19 Cal 491 (1861) Justice Field, later a dissenter in The Slaughter House Cases, held that a law requiring licenses for operating mines could not require the licensing of mines operated on privately held land.

For many years before Lochner, it was an established principle that “[t]he law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health…and when it appears that [public health] is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen.” Watertown v. Mayo, 109 Mass. 315, 319 (1872).

See further Master & Company of Framework Knitters v. Green, 1 Ld. Raym. 113, 91 Eng. Rep. 972 (1697) (“reasonableness of [bylaws] is examinable by the judges.” Id. at 114); Foster v. Essex Bank, 16 Mass. 245 (1819); Goshen v. Stonington, 4 Conn. 209 (1822); Vanderbilt v. Adams, 7 Cow. 349 (N.Y.Sup. 1827); Coates v. City of New York, 7 Cow. 585 (N.Y.Sup.1827); Wally’s Heirs v. Kennedy, 10 Tenn. 554 (1831); In re Nightingale, 28 Mass. 168 (1831); Baker v. Boston, 29 Mass. 184, 194 (1831); Glenn v. Baltimore, 5 G. & J. 424 (Ct. App. Md. 1833); Austin v. Murray, 33 Mass 121 (1834); In re Goddard, 33 Mass. 504 (1835); Pierce v. State, 13 N.H. 536 (1843); Walker v. Board of Public Works, 16 Ohio 540 (1847); Green v. Savannah, 6 Ga. 1 (1849); Our House No. 2 v. State, 4 Greene 172, 1853 WL 221 (Iowa 1853); Mays v. City of Cincinnati, 1 Ohio St. 268 (Ohio 1853); Thorpe v. Rutland, 27 Vt. 149 (1854); People v. Hawley, 3 Mich.330 (1854); Westervelt v. Gregg, 12 N.Y. 202 (1854); Guy v. Hermance, 5 Cal. 73 (1855); People v. Toynbee, 11 How.Pr. 289, 20 Barb. 168, 1855 WL 6562 (N.Y.Sup. 1855); State v. Wheeler, 25 Conn. 290 (1856); Winnsboro v. Smart, 11 Rich. 551 (S.C.App. 1858); City of New York v. Second Ave. R. Co., 21 How.Pr. 257 (N.Y.Sup. 1861); Ames v. County, 11 Mich. 139 (1863); Ash v. People, 11 Mich. 347 (1863); City of New York v. Second Ave. R. Co., 32 N.Y. 261 (1865); Coe v. Shultz, 47 Barb. 64 (N.Y. Sup, 1866); Roosevelt v. Godard, 52 Barb. 533 (N.Y.Sup. 1868); Bloomington v. Wahl, 46 Ill. 489 (1868); Hayes v. City of Appleton, 24 Wis. 542 (1869); Craig v. Klein, 65 Penn. 399 (1870); City of St. Louis v. Fitz, 53 Mo. 582 (1873); Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191 (1873); Weismer v. Village of Douglas, 64 N.Y. 91 (1876); Watertown v. Mayo, 109 Mass. 315 (1872); People ex rel. Bolton v. Albertson, 55 N.Y. 50 (N.Y. 1873); I. W. & W. R. Co. v. Jacksonville, 67 Ill. 37 (1873); Farwell v. City of Chicago, 71 Ill. 269 (1874); Henderson v. Mayor of New York, 92 U.S. 259 (1875); In re Deansville Cemetery Assn., 66 N. Y. 569 (1876); Shepperd v. County Commissioners of Sumpter, 59 Ga. 535 (1877); City of St. Paul v. Traeger, 25 Minn. 248 (1878); City of Baltimore v. Radecke, 49 Md. 217 (1878); Stuart v. Palmer, 74 N.Y. 183 (1878); In the Matter of Cheesebrough, 78 N. Y. 232 (1879); Lowry v. Rainwater, 70 Mo. 152 (1879); In Matter of Ryers, 72 N. Y. 1 (1879); Intoxicating Liquor Cases, 25 Kan. 751, 765 (1881); State v. Addington, 12 Mo. App. 214 (Ct. App. Mo. 1882) aff’d, 77 Mo. 110 (Mo. 1882); Joseph v. Randolph, 71 Ala. 499 (1882); State v. Hipp, 38 Ohio St. 199 (Ohio 1882); In re Eureka Basin Warehouse & Manufacturing Co., 96 N.Y. 42 (1884); State v. Mott, 61 Md. 297 (1884); State v. Bean, 91 N. C. 558 (1884); Mankato v. Fowler, 32 Minn. 364 (1884); Miller v. Jones, 80 Ala. 89 (1885); Millett v. People, 117 Ill. 294 (1886); In re Frazee, 30 N.W. 72 (Mich. 1886); Amperse v. Common Council of City of Kalamazoo, 59 Mich. 78 (1886); State v. Divine, 4 S.E. 477 (N.C. 1887); San Francisco v. Liverpool & London & Globe Ins. Co., 74 Cal. 113 (1887); Quintini v. City of Bay St. Louis, 1 So. 625 (Miss. 1887); People ex rel. Kuhn v. Common Council, 70 Mich. 534 (1888); People v. Haug, 68 Mich. 549 (1888) (Sherwood, C.J., dissenting); People v. Gillson, 109 N.Y. 389 (1888); Ragio v. State, 86 Tenn. 292 (1888); State v. Goodwill, 33 W. Va. 179 (1889); Chaddock v. Day, 75 Mich. 527 (1889); Hughes v. Recorder’s Court of Detroit, 75 Mich. 574 (1889); People v. Armstrong, 73 Mich. 288 (1889); Moore v. City of Minneapolis, 45 N.W. 719 (Minn. 1890); Jacksonville v. Ledwith, 26 Fla. 163 (1890); State v. Mahner, 9 So. 480 (La. 1891); Ex parte Tuttle, 91 Cal. 589 (1891); People v. Wagner, 86 Mich. 594 (1891); San Antonio & A.P. Ry. Co. v. Wilson, 19 S.W. 910 (Tex.Ct.App. 1892); Moore v. City of St. Paul, 51 N.W. 219 (Minn. 1892); State v. Dubarry, 11 So. 718 (La. 1892); State v. Sheriff of Ramsey County, 48 Minn. 236 (1892); State v. Moore, 18 S.E. 342 (N.C. 1893); Ex parte Whitwell, 98 Cal. 73 (1893); State v. Loomis, 115 Mo. 307 (1893); Commonwealth v. Fowler, 28 S.W. 786 (Ky. 1894); Smiley v. MacDonald, 42 Neb. 5 (1894); Low v. Rees Printing Co., 41 Neb. 127 (1894); Ritchie v. People, 155 Ill. 98 (1895); Ex parte Jentzsch, 112 Cal. 468 (1896); Shaver v. Pennsylvania Co., 71 F. 931 (1896); Chicago, B. & Q. R. Co. v. State, 47 Neb. 549 (1896); State v. Hunt, 40 S.E. 216 (N.C. 1901); Price v. People, 61 N.E. 844 (Ill. 1901); Winthrop v. New England Chocolate Co., 180 Mass. 464 (1902); Wenham v. State, 65 Neb. 394 (1902); Sonora v. Curtin, 137 Cal. 583 (1902); Iler v. Ross, 64 Neb. 710 (1902); In re Anderson, 69 Neb. 686, (1903); Ex parte Dickey, 144 Cal. 234 (1904); People ex rel. Armstrong v. Warden of City Prison of New York, 183 N.Y. 223 (1905).

This principle was not confined to state cases. In Pumpelly v. Green Bay Co., 80 U.S. 166 (1871), for instance (an eminent domain case) the Court rejected a statutory “construction [which] would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.” Id. at 178. As the Court explained in Mugler v. Kansas, 123 U.S. 623, 661 (1887) the Supreme Court held that “[t]he courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty—indeed, are under a solemn duty—to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” See also Brown v. Maryland, 25 U.S. 419 (1827); United States v. Martin, 94 U.S. 400 (1876); Shields v. Ohio, 95 U.S. 324 (1877); Boyd v. United States, 116 U.S. 616, 635 (1886); Minnesota v. Barber, 136 U.S. 313 (1890); Budd v. People, 143 U.S. 517 (1892) and cases cited therein; Lawton v. Steele, 152 U.S. 133 (1894); Holden v. Hardy, 169 U.S. 366 (1898); Boyd v. United States, 116 U.S. 616, 635 (1886); Otis v. Parker, 187 U.S. 606 (1903). Even Justice Oliver Wendell Holmes believed it proper to inquire whether the statute in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), was “justified as a protection of personal safety.” Id. at 420. He found that it was not.

While this reasoning was not necessarily universal—see, for instance, Wiggins Ferry Co. v. City of St. Louis, 102 Ill. 560 (1882); Braun v. Chicago, 110 Ill. 186 (1884)—the precedents were certainly strong enough to provide a foundation for Lochner.

The following is a list of federal cases between the 1873 Slaughter House Cases and 1937’s Carolene Products decision, which address the common law right to earn a living. This list is obviously not complete, as I have intentionally left off cases discussed in the text, or which are already well known (Lochner, for instance).

Holden v. Hardy, 169 U.S. 366, 391 (1898) (“as property can only be legally acquired as between living persons by contract, a general prohibition against entering into contracts with respect to property, or having as their object the acquisition of property, would be equally invalid.”); Williams v. Fears 179 U. S. 270 (1900) (“The liberty, of which the deprivation without due process of law is forbidden, ‘means not only the right of the citizen to be free from the mere physical restraint of his person, [but also] to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation...’” Id. at 274); Atkin v. Kansas, 191 U.S. 207 (1903) (“[I]t is contended to be the right of every one to dispose of his labor upon such terms as he deems best—as it undoubtedly is….” Id. at 223); Chicago, B. & Q. R. R. v. McGuire, 219 U. S. 549, 566 (1911): (“the right to make contracts is embraced in the conception of liberty as guaranteed by the Constitution.”); Murphy v. California, 225 U.S. 623, 628 (1912) (“The Fourteenth Amendment protects the citizen in his right to engage in any lawful business....”); Buchanan v. Warley, 245 U.S. 60 (1917) (“Colored persons are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color. These enactments did not deal with the social rights of men, but with those fundamental rights in property which it was intended to secure upon the same terms to citizens of every race and color.” Id. at 78-79); New York Life Insurance Co. v. Dodge, 246 U.S. 357, 374 (1918) (“to contract is a part of the liberty guaranteed to every citizen.”); Duplex Co. v. Deering, 254 U.S. 443, 465 (1921) (“complainant’s business of manufacturing printing presses and disposing of them in commerce is a property right, entitled to protection against unlawful injury or interference....”); Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 513 (1924) (“a State may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.”); Terrace v. Thompson, 263 U.S. 197 (1923) (“the Constitution protects [the plaintiff] in his right to earn a livelihood by following the ordinary occupations of life.” Id. at 215); Norfolk & W. Ry. Co. v. PSC of West Virginia, 265 U.S. 70, 74 (1924) (“The validity of regulatory measures may be challenged on the ground that they transgress the Constitution; and thereupon it becomes the duty of the court, in the light of the facts in the case, to determine whether the regulation is reasonable and valid or essentially unreasonable, arbitrary and void.”); Pierce v. Society of Sisters, 268 U.S. 510, 536 (1925) (“Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved [in many] cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers.”); Weaver v. Palmer Brothers Co., 270 U.S. 402 (1926) (“The business here involved is legitimate and useful; and, while it is subject to all reasonable regulation, the absolute prohibition of the use of shoddy in the manufacture of comfortables is purely arbitrary and violates the due process clause of the Fourteenth Amendment.” Id. at 415); Fairmont Creamery Co. v. Minnesota, 274 U.S. 1 (1927) (State may not “the inhibition of the statute has no reasonable relation to the anticipated evil—high bidding by some with purpose to monopolize or destroy competition. Looking through form to substance, it clearly and unmistakably infringes private rights [.]” Id. at 9); Louis K. Liggett Co. V. Baldridge, 278 U.S. 105, 113 (1928) (““A state cannot, ‘under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.’”).

The following state cases from the so-called “era of laissez-faire”—between 1873 and 1937—defend the right to earn a living.

See Joyce v. City of East St. Louis, 77 Ill. 156 (1875) (carriage licensing scheme must be strictly construed);Commonwealth v. Bacon, 1877 WL 7649 Ky at *2 (“In this country…the right of the citizen to acquire, hold, and enjoy property is guaranteed by the fundamental law[.]”); Bertholf v. O’Reilly, 74 N.Y. 509, 515 (1878) (“the right to liberty [includes an individual’s] right to exercise his faculties and to follow a lawful avocation for the support of life; the right of property, the right to acquire power and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State.”); Baltimore v. Radecke, 49 Md. 217 (1878) (ordinance for prohibiting steam engines invalid because (“it commits to the unrestrained will of a single public officer the power” to destroy businesses, id. at 230); City of St. Paul v. Traeger, 25 Minn. 248, 252 (1878) (“when, as in this case, the ordinance which is sought to be sustained operates in restraint of an occupation or pursuit useful in its character, and which is so recognized at common law and under the laws of the state, it is especially necessary to show that the authority for its passage has been expressly or otherwise unequivocally conferred.”); In re Parrott, 1 F. 481, 498 (D. Cal. 1880) (“No enumeration would, I think, be attempted of the privileges, immunities, and exemptions of the most favored nation, or even of man in civilized society, which would exclude the right to labor for a living. It is as inviolable as the right of property, for property is the offspring of labor. It is as sacred as the right to life, for life is taken if the means whereby we live be taken.”); Intoxicating Liquor Cases, 25 Kan. 751, (1881) 1881 WL 944 at *7 (“The law does not attempt to prescribe who may and who may not become druggists. That question each individual settles for himself.”); State v. Hipp, 38 Ohio St. 199, 222 (1882) (“one who conducted such business in a lawful manner was entitled, under the law as it then existed, to the same protection which was accorded to dealers in other articles of personal property[.]”); Butzman v. Whitbeck, 42 Ohio St. 223, 230-231 (1884) (law may not invest private landowner “with the vast discretion of determining whether the dealer upon his premises shall prosecute his business as a lawful traffic, or whether he shall remain under the condemnation of the law[.]”); State v. Mott, 61 Md. 297 (1884) (“it is well settled that a power simply to regulate does not embrace a power to prohibit or destroy a trade or occupation.” Id. at 308-309.); Mankato v. Fowler, 32 Minn. 364 (1884) (“the business of an auctioneer is a lawful and useful one, and there would seem to be no reasonable warrant ... for exacting so large a sum as a license fee, the result of which, it appears, is not to regulate but to suppress such business.” Id. at 366); In Re Jacobs, 98 N.Y. 98, 106-107 (1885) (“Liberty ...means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights ... are infringements upon his fundamental rights of liberty....”); Sarrls v. Commonwealth, 83 Ky. 327, 1885 WL 5808 at *2 (1885) (“while the Legislature has the power to regulate the sale of liquors to be used as a beverage, or to prohibit its sale for that purpose altogether, it cannot exercise that power so arbitrarily as to prohibit the use or sale of it as medicine.”); .New York v. Marx, 99 N.Y. 377, 387 (1885) (“Illustrations might be indefinitely multiplied of the evils which would result from legislation which should exclude one class of citizens from industries, lawful in other respects, in order to protect another class against competition.”); Amperse v. Common Council of City of Kalamazoo, 59 Mich. 78, 82 (1886) (“The right of a married woman to engage in and carry on any legal business in her own right, and in her own name, is no longer an open question in this state.”); Potter v. Common Council of Village of Homer, 59 Mich. 8, 14 (1886) (Where licensing board refuses license to qualified applicant, “[i]t is tyrannical as well as unlawful to hinder any one who is ready to furnish security from conducting his lawful business.”); Godcharles and Company v. Wigeman 113 Pa. 431, 437 (Pa. 1886) (“[A person] may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal, and any and every law that proposes to prevent him from so doing is an infringement of his constitutional privileges, and consequently vicious and void.”); People v. Gillson, 109 N.Y. 389, 398 (1888) (“a person living under our Constitution has the right to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit.”); In re Hauck, 38 N.W. 269, 276 (Mich. 1888) (“absolute prohibition cannot be enacted under a title to regulate[.]”); People v. Haug, 68 Mich. 549, 562 (1888) (“The great charter made it unlawful to impose any penalty or forfeiture which should deprive a man of what is translated his ‘contentment,’ or a person in any kind of business, whether commercial or otherwise, of the means of continuing that business.”); People ex rel. Kuhn v. Common Council, 70 Mich. 534, 537 (1888) (“Liberty ... means ... to pursue such callings and avocations as may be most suitable to develop his capacities, and to give them their highest enjoyment.”); State v. Fire Creek Coal & Coke Co., 33 W. Va. 188, 191 (1889) (“[one has] the right of managing his own private business[.]”); Ex parte Kuback, 85 Cal. 274, 276 (1890) (“‘any person is at liberty to pursue any lawful calling....’”); Jacksonville v. Ledwith, 26 Fla. 163 (1890) (“the sale of [goods] may under this grant be restricted to markets duly established under the other, where the regulations do not constitute an illegal restraint or a prohibition of the trade....” Id. at 192); Commonwealth v. Perry, 155 Mass. 117, 121 (1891) (“The right to acquire, possess, and protect property includes the right to make reasonable contracts, which shall be under the protection of the law. The manufacture of cloth is an important industry, essential to the welfare of the community. There is no reason why men should not be permitted to engage in it.”); Moore v. City of St. Paul, 51 N.W. 219 (Minn. 1892) (declaring license requirement void because of the “arbitrary and unequal scale of charges as is provided for[.]” Id. at 220); San Antonio & A.P. Ry. Co. v. Wilson, 19 S.W. 910, 912 (1892) (“Unquestionably, the legislature may subject any occupation, business, or class to reasonable regulations, when required by public interest and welfare, but in all illustrations of the exercise of this power it will be found there was some circumstance of threatened damage to the public that required the regulation. No well-considered case can be found sustaining a penalty on an ordinary contract, where public interest was not involved.”); Ex parte Theisen, 30 Fla. 529 (1892) (city may not prohibit “the ordinary vocations of life which a man has an inherent right to pursue, such as keeping a market, a dairy, or conducting a laundry, and the like....” Id. at 536); State v. Dubarry, 11 So. 718 (La. 1892) (“the ordinance is illegal and void, by reason of the provision contained in the first section, which makes the establishment of private markets thereafter to depend upon the applicant obtaining ‘permission of the city council.’” Id. at 719); Frorer v. People, 141 Ill. 171, 181 (1892) (“The privilege of contracting is both a liberty and a property right”); State v. Costello, 23 A. 868, 869 (Conn. 1892) (“the act in question is one clearly in derogation of a common private right. According to the claim of the state, it disables a certain class of persons of full age, of sound mind, and in all respects legally capable of entering into a contract, from making a certain class of contracts. Such statutes are to be construed strictly, and in favor of the right.”); Sherlock v. Stuart, 96 Mich. 193, 199 (1893) (“any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right cannot be taken away.”); Ex parte Whitwell, 98 Cal. 73, 78 (1893) (“the right of the citizen to engage in such a business or follow such a profession is protected by the constitution....”); Braceville Coal Co. v. People, 147 Ill. 66, 71 (1893) (“Liberty, as that term is used in the constitution ... embrace[s] the right of every man to ... adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare.”); State v. Moore, 18 S.E. 342, 345 (N.C. 1893) (“a man’s right to liberty includes ‘the right to exercise his faculties, and to follow a lawful vocation for the support of life.’“); Low v. Rees Printing Co., 41 Neb. 127, 138 (1894) (“To forbid an individual or a class the right to the acquisition and enjoyment of property in such manner as should be permitted to the community at large, would be to deprive them of liberty.”); Leep v. Railway Co. 58 Ark. 407, 415 (1894) (“The right to acquire and possess property necessarily includes the right to contract; for it is the principal mode of acquisition, and is the only way by which a person can rightly acquire property by his own exertion. Of all the ‘rights of persons’ it is the most essential to human happiness.”); Commonwealth v. Fowler, 28 S.W. 786, 787 (Ky. 1894) (“Every one has the right to follow an innocent calling without permission from the government.”); In Re a Bill Providing that Eight Hours Shall Constitute A Day’s Labor, 39 P. 328, 329 (Colo. 1895) (“The bill submitted also violates the right of parties to make their own contracts, a right guaranteed by our bill of rights and protected by the fourteenth amendment to the constitution of the United States.”); Ritchie v. People, 155 Ill. 98, 104 (1895) (“Liberty includes the right to acquire property, and that means and includes the right to make and enforce contracts. […T]he laborer has the same right to sell his labor, and to contract with reference thereto, as has any other property owner.”); Ex Parte Jentzsch, 112 Cal. 468, 475 (1896) (“[the challenged law] works an invasion of individual liberty, the liberty of free labor which it pretends to protect.”); Shaver v. Pennsylvania Co., 71 F. 931, 934 (1896) (“employees ... are capable of deciding for themselves whether they want to contract for such protection. It is not within the powers of a legislature to assume that this class of men need paternal legislation, and that, therefore, they will protect them by depriving them of the power to contract as other men may.”); Keen v. City of Waycross, 29 S.E. 42 (Ga. 1897) (“the law recognizes in no one a right to create or maintain a monopoly.” Id. at 43); State v. Mahner, 9 So. 480 (La. 1891) (“The ordinance is not general in its operation. It does not affect all citizens alike who follow the same occupation which it attempts to regulate.” Id. at 480); Banta v. City of Chicago, 172 Ill. 204, 218 (1898) (state may only tax those occupations “which, because of exceptional and particular reasons affecting public policy, are deemed proper subjects for supervision or regulation by the state.”); Rhustrat v. People, 185 Ill. 133, 138-139 (1900) (“the enjoyment by the citizen, upon terms of equality with all others in similar circumstances, of the privilege of pursuing an ordinary calling or trade ... is a general part of his rights of liberty and property as guaranteed by the fourteenth amendment”); City of Atlanta v. Stein, 36 S.E. 932, 933 (Ga. 1900) (“It cannot be seriously denied that the ordinance tended to defeat competition and encourage monopoly. ... It is not within the power of municipal authorities to enact legislation of this kind.” Id. at 933); Valentine v. Berrien Circuit Judge, 124 Mich. 664, 667 (1900) (“The constitution guaranties to citizens the right to engage in lawful business, unhampered by legislative restrictions, where no restrictions are required for the protection of the public.”); Hudspeth v. Hall, 38 S.E. 358 (Ga. 1901) (“the creation or encouragement of a monopoly is opposed to public policy.” Id. at 359); Price v. People, 61 N.E. 844, 846 (1901) (upholding regulation because it “does not seek to prohibit the pursuit of the occupation of an employment agent by a private citizen, but only the regulation of that occupation.”); Mathews v. People, 202 Ill. 389, 404 (1902) (“‘that all persons should be equally entitled to pursue their happiness and acquire and enjoy property[.]’”); Sonora v. Curtin, 137 Cal. 583, 586 (1902) (“‘[A]ny person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right cannot be taken away.’”); Ex Parte Dickey, 144 Cal. 234, 238 (1904) (“This right of contract common to the followers of all legitimate vocations is an asset of the petitioner in his chosen occupation, and, as has been said, is a part of the property in the enjoyment of which he is guaranteed protection by the constitution.”); People ex rel. Armstrong v. Warden of City Prison of New York,183 N.Y. 223, 226 (1905) (“The cases are abundant which hold that the individual has the right to carry on any lawful business, or earn his living in any lawful way, and that the Legislature has no right to interfere with his freedom of action in that respect, or otherwise place restraints upon his movements.”); Commonwealth v. Strauss, 191 Mass. 545, 550 (1906) (“The rights relied upon under the fourteenth amendment to the Constitution of the United States ... are substantially the same, namely, the right of every person to his life, liberty and property, including freedom to use his faculties in all lawful ways, ‘to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or vocation, and for that purpose.’”); Wyeth v. Cambridge Board of Health, 200 Mass. 474, 478 (1908) (“The right to enjoy life, liberty and the pursuit of happiness is secured to every one under the Constitution of Massachusetts. This includes the right to pursue any proper vocation to obtain a livelihood.”); City of Spokane v. Macho, 51 Wash. 323, 324 (1909) (“The vice of the section under discussion lies in this, that it makes an act criminal in one who may be engaged in a lawful business[.]”); Columbia Trust Co. v. Lincoln Institute of Kentucky, 129 S.W. 113, 115-116 (Ky. 1910) (“‘Every one has the right to follow an innocent calling without permission from the government.’ ... It is useless to multiply authorities on so obvious a proposition.”); State v. Withnell, 91 Neb. 101 (1912) (“While a city, having authority ‘to define, regulate, suppress and prevent nuisances,’ cannot arbitrarily use it to prohibit harmless and inoffensive private enterprises, the acts of the city council in exercising such police power may be held conclusive, if the subject of municipal legislation might or might not be a nuisance, depending upon conditions and circumstances.” Id. at 105); Noe v. Morristown, 128 Tenn. 350, 354 (1913) (“even the legislature is forbidden to create a monopoly.”); People v. Brazee, 183 Mich. 259, 263 (1914) (“‘The Legislature of this state is not empowered by the Constitution to regulate contracts between its citizens who are engaged in legitimate commercial business[.]’”); Rhodes v. J.B.B. Coal Co., 79 W. Va. 71 (1916) (“Another rule of interpretation is that a statute in derogation of the common law, which imposes restrictions upon trade or common occupation, should be construed strictly.” Id. at 76); Osgood v. Tax Comm’r, 235 Mass. 88 (Mass 1920); Hamilton v. Vaughan, 212 Mich. 31, 44 (1920) (Fellows, J., dissenting) (“prohibition [of an occupation] must bear some reasonable relation to the public good, or the public health, or the public morals, or the public safety, or the public welfare. The right to regulate I concede; the right to prohibit I deny. [The] right of the state to regulate a business under its police power does not carry with it the right to destroy, the right to prohibit[.]”); Waycross v. Caulley, 163 Ga. 372, 374 (Ga. 1926) (“The ordinance purports to grant an exclusive franchise to the individuals mentioned as grantees, which would deny a skilled butcher having an established business the right to slaughter at the abattoir or elsewhere his own animals for food to be used in the city. To the extent that the ordinance denies such right it creates a monopoly.”); New York C. R. Co. v. Central N. E. R. Co., 264 Mass. 128 (Mass, 1928) (“[T]he act of Congress and the order of the interstate commerce commission will not be construed to deprive the Boston and Albany Railroad Company ... of its vested rights unless it appears by express words or plain implication that such was the intention of both Congress and the commission” Id. at 144).

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[1] College of Public Interest Law Fellow, Pacific Legal Foundation. J.D., 2002, Chapman University School of Law; B.A., Hillsdale College, 1998.An abridged version of this article will appear in 7 Independent Rev. 51 (Summer, 2002). In the following paper, many quotations from antique sources reproduce obsolete or incorrect spellings which appear in the original. These are reproduced without the customary “sic” designation, because using “sic” after all of these unique spellings would quickly become tiresome. Many of the cases discussed in this paper were written in Law French, an odd mixture of Latin, Norman French, and English, which constituted a unique legal language until the Seventeenth Century. These have been summarized, and the Law French text quoted in the footnotes.

[2] Catherine Drinker Bowen, The Lion And The Throne: The Life of Edward Coke 420 (1957).

[4] See J.C. Holt, Magna Carta 448-473 (2nd ed., 1992). This was paragraph no. 30 of the Magna Carta signed by Edward I in 1297. In the original Magna Carta of 1215, it appeared as paragraph no. 41. Note that Magna Carta and the Assize of Bread discussed infra, are not, technically speaking, common law. Common law consists of the decisions and customs common to the whole land of England as of AD 1189, the death of King Henry II. See 1 Coke, Institutes, *35-37.

[5] See further Winston Churchill, The Birth of Britain 187 (1980); Holt, supra note 4 at 2-22, 378-405 (describing the rise of the “myth of Magna Carta”).

[6] Fortescue, De Laudibus Legum Angliae 87 (Francis Gregor, trans., Robert Clarke & Co., 1999) (1545)

[8] See 3 Coke, Institutes, *181; 4 W.S. Holdsworth, A History of the Law of England 344 (4th ed, 1938).

[11] See also The Case of the Tailors, 11 Co. Rep. 53a; 77 Eng. Rep. 1218 (1615) (citing Dyer’s Case, and noting that “there Hull held, that the bond was against the common law, and by G—d if the plaintiff was here, he should go to prison till he paid a fine to the King.” 11 Co. Rep. at 53b; 77 Eng. Rep at 1219).

[12] Throughout this paper, I will use interchangeably such terms as “the right to a lawful calling,” “the right to pursue a lawful occupation,” “the right to earn an honest living,” and so forth. I find the term “right of livelihood” to have been tainted by frequent misuse. See infra text accompanying note 221.

[14] Id. at 9. See also Keeble v. Hickeringill, 11 East 574, 103 Eng. Rep. 1127 (1707).

[16] See Timothy Sandefur, Sir Edward Coke and the Common Law, Laissez-Faire City News, Sept. 25, 2000, avail. at <http://www.zolatimes.com/V4.39/edward_coke.html> (visited Jan. 12, 2001).

[18] For an enlightening history of this case, see Jacob Corre, The Argument, Decision, and Reports of Darcy v. Allen, 45 Emory L.J. 1261 (Fall, 1996)

[19] Note that this was the argument of one of the attorneys in the case, not an opinion by Popham. Popham and the court did not explain their decision in print. See id. at 1269 et seq.

[20] Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). Holmes’ remark, and his further explanation that “a constitution is not intended to embody a particular economic theory,” id., is questionable at best. A constitution is exactly where a particular political and economic theory is embodied. The American constitution explicitly protects private property, contracts, and even a gold standard. An examination of the records of the Philadelphia convention of 1787 reveals that these clauses were included precisely on the basis of classical economic theory. The Soviet constitution was founded on an opposing economic theory, and explicitly recognized that fact. Indeed, what is a constitution, if it is not an enactment of a particular economic and political system? The classic authors, from Aristotle to Augustine held that political society is (in Augustine’s words) “an assemblage associated by a common acknowledgement of right, and by a community of interests.” See Augustine, The City of God 19:23-24, reprinted in Vernon J. Bourke, ed., The Essential Augustine 211 (1964); see also Aristotle, Politics 1:2 reprinted in Richard McKeon, Basic Works of Aristotle 1113-1316 (1941) (“the state comes into existence, originating in the bare needs of life, and continuing in existence or the sake of a good life.” Id. at 1129). While such modernists as Holmes may have rejected classical philosophy, even their view, that society is only a means of organizing and bargaining for political power, would beg the question: on what premises does a society create the rules for that bargaining? Even if the constitution is only a procedural document, the decisions that lead to those procedural arrangements are based on at least an implicit judgment of good and bad. It is harder for the Congress, for example, to overrule the President’s veto than for the Congress to pass a law with the President’s consent. Ostensibly, this is because a law which the President does not approve is more likely to be a “bad” law than a law which both the President and the Congress agree upon. To have made the procedure (i.e., the power-sharing) more difficult in one case than in the other embodies a judgment of good and bad which can only be called a “particular political theory.” Likewise, the constitution prohibits any state from “mak[ing] any Thing but gold and silver Coin a Tender in Payment of Debts.” U.S. Const. Art I, sec. 10, cl. 1. This rule can only be explained by reference to “a particular economic theory.” See also Charles A. Beard, An Economic Interpretation of the Constitution of the United States (1935) (“The Constitution was essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.” Id. at 324).

[21] Rannulf Glanville, A Treatise on the Laws and Customs of the Realm of England 129 (G.D.G. Hall, trans. & ed., Clarendon Press 1965).

[25] Leet Rolls of Norwich, 5 Selden Society at 10 (Parish of St. Peter de Manecroft, 1287).

[27] The courts also never held that the state could not prohibit the exercise of a lawful trade on Sabbath days. See, e.g., Crepps v. Durden, 2 Cowp. 640, 98 Eng. Rep. 1283 (1777).

[28] This point was put succinctly in an 1833 New York case, where the court said that “a by-law that no meat should be sold in the village would be bad, being a general restraint; but that meat shall not be sold except in a particular place is good, not being a restraint of the right to sell meat, but a regulation of that right.” Village of Buffalo v. Webster, 10 Wend. 99 (N.Y. Sup. 1833).

[30] Accord Walter v. Hanger, Moore 832, 72 Eng. Rep. 935 (K.B. 1602) (“Fuit resolve p touts que cestuy que est civis & liber homo de prender benefit de cest priviledge doit ester free del City, & auxi inhabitant deins le city, & auxi destre unpaterfamilias deins le City….”) Note that the Court referred to the right to earn a living by the phrase “privileges and liberties,” similar to the “privileges and immunities” language used in the Fourteenth Amendment.

[33] Chesman ex ux v. Nainby, 2 Strange 739, 93 Eng. Rep. 819, 821 (1727). To put it another way—in the words of a 1787 text on English legal history—”Many other statutes were made [in the reign of Henry VIII] for the conducting of different manufactures, of which, as well as of other acts of this and following reigns, it may be observed in general, that they had a tendency to give preferences to corporations and fraternities, and to encourage the spirit of monopoly.” 4 John Reeves, History of English Law from The Time of the Saxons to the End of the Reign of Philip and Mary 230 (2d ed., 1787). See also Wannel v. Chamberlain of London, 1 Str. 675, 93 Eng. Rep. 775 (1726) (“We are all of opinion, that this is a good by-law, being made in regulation of trade, and to prevent fraud and unskilfulness, of which none but a company that exercise the same trade can be judges. This does not take away his right to his freedom, but only his election of what company he shall be free[.]” Id. at 93 Eng. Rep. 775-776). Accord Player v. Vere, T. Raym. 288, 83 Eng. Rep. 149 (1691), also reported at T. Raym. 324, 83 Eng. Rep. 168.

[34] State v. Town Council of Columbia, 6 Rich. 404, 1853 WL 2913 at *6 (S.C. App. Law 1853); Accord, Sweet v. Wabash, 41 Ind. 7 (1872); Emporia v. Volmer, 12 Kan. 622 (1874); Cantril v. Sainer, 59 Iowa 26 (1882).

[36] Like many case reports of its day, Davenant is written in Law French. See supra note 1. But it was explained in Darcy, 77 Eng. Rep. at 1263.

[41] See also Chamberlain of London’s Case, 5 Co. Rep. 62b; 77 Eng. Rep. 150 (1592) (upholding regulation of trade where it is “made... to prevent all frauds and falsities.” 5 Co. Rep. at 63a, 77 Eng. Rep. at 151.

[47] See also Weaver of Newbury’s Case, Moore 869, 72 Eng. Rep. 962 (K.B. 1616?) (“le power de faire by-lawes nest bone al eux: Mes auxi quia le by law fuit encounter reason.”)

[49] W. Jones 231; 82 Eng. Rep. 122 (1632) (“[L]es justices…agree que le patent ne fuit bon, car est valde unreasonable, que un home avera le feasans de touts bills & informations, & fuit un monopoly declare per l’estatute de 21 Jac. Comment nient deins le penalty del’ dit statute.” Id.)

[50] Les Brick-Layers & Tilers v. Les Plaisterers, 2 Rolle 391, 81 Eng. Rep. 871 (1624) (“Dodridge Justice dit, que il ne fuit de lour opinion que touts trades fueront alike destre used neq; per common ley que home poet use queux, & quant trades que il voile. Dieu in le primer creation del’ home ordaine al un un occupation in que il viveroit, & sic nature ad fait ascuns inclinable al un trade pluis q al auter, & null civil republic poet estoyer sans touts distinctions de trades…al common ley home ne fuit lye a user un trade pluis que auter uncore fuit distinction de trades al common ley & un home ne poet aver use deux….” Id. at 392, 81 Eng. Rep. at 872.)

[51] 3 Coke, Institutes *181. The Latin phrase is from Romans 1:30, which denounces—in the King James Version’s translation—”[b]ackbiters, haters of God, despiteful, proud, boasters, inventors of evil things, disobedient to parents.”

[58] Id. See also Mitchell v. Reynolds, Fortescue 295, 92 Eng. Rep. 859 (1714) (Private contracts in restraint of trade, “where no particular consideration is to balance the restraint of trade, ... are void, in what form soever the contract appears.” Id.); Broad v. Jollyfe, Cro. Jac. 596, 79 Eng. Rep. 509 (1616) (same); Hobbs v. Young, 2 Salk. 610, 91 Eng. Rep. 517 (1692) (same); King v. Company of Fishermen of Faversham 8 T. R. 352, 101 Eng. Rep. 1429 (1799) (private agreement not to compete is legal, but law in restraint of trade is bad).

[59] Keeble, supra note 14. See also A. W. Brian Simpson, Leading Cases in The Common Law, 45-75 (1996).

[62] Law reports from this era and earlier frequently record only the attorney’s arguments, or only the judge’s words, and do not record other material. In Robinson v. Watkins, Skinn 371, 90 Eng. Rep. 165 (1702), the reporter has carefully preserved the long and eloquent argument of the defendant’s counsel, and then reports of the outcome only that the matter “was settled in Parliament,” without saying what the settlement was. The report, however, is strong evidence that by 1702, the English courts regarded it as a settled matter that “the common law [] leaves it lawful for any man to exercise a lawful imployment.” Id. at 380, 90 Eng. Rep at 169. See further Rex v. Combs, Comberbach 243, 90 Eng. Rep. 454 (1702): “an indictment which sets forth that there is an antient custom in Winchester, that no person should exercise any trade till free of the guild of merchants there... was quashed without difficulty.” Id.); Harrison v. Godman, 1 Burr. 12, 97 Eng. Rep. 161 (1756) (striking down licensing requirement for butchers). Yet still the courts upheld regulations which were necessary to continue the trade or protect quality. See Bosworth v. Hearne, 2 Str.1085, 93 Eng. Rep. 1047 (K.B. 1738) (by law permissible if reasonable and not in restraint of trade); Rex v. Harrison, 3 Burr. 1322, 97 Eng. Rep 854 (1762) (upholding licensing requirement for butchers because it “is only regulating the trade to what is most right and reasonable.” 3 Burr. at 1329, 97 Eng. Rep. at 161; Rex v. Master of Company of Surgeons, 2 Burr. 893, 97 Eng. Rep. 621 (1759) (upholding requirement that surgeon’s apprentice must understand Latin.); Kirk v. Norwill, 1 T.R. 118, 99 Eng. Rep. 1006 (1786) (striking down regulation of manufacture of cutlery where penalty was forfeiture); Hesketh v. Braddock, 3 Burr. 1846, 97 Eng. Rep. 1130 (1766) (“In the regulation of their own members, [guilds] may indeed make bye-laws…. But if corporations were to try their own suits against strangers upon a bye-law ‘for excluding all traders but themselves,’ there would be an end of the distinction which has long been established, ‘that a bye-law which lays this restraint upon trade is void unless their be a custom to support it.’” Id. at 1858, 97 Eng. Rep. at 1136); King ex rel. Coates v. Cooper’s Company of Newcastle-upon-Tyne, 7 T.R. 543, 101 Eng. Rep. 1123 (1798) (by-law oppressing trade is bad); Bricheno v. Thorp, Jacob 300, 37 Eng. Rep. 864 (1821) (“A gentleman going into business for himself must not carry into it the secrets of his master; but on the other hand, I think it my duty to take care that he may not be prevented from engaging in any business that he may fairly and honourably take.” Id. at 865); Clark v. Le Cren, 9 B&C 52, 109 Eng. Rep. 20 (1829) (“By common law, any person may carry on any trade in any place, unless there be a custom to the contrary ... but if there be no such custom, a by-law in restraint of trade will be bad.” Id. at 59, 109 Eng. Rep. at 22.

[63] Thomas Jefferson, Autobiography, reprinted in Jefferson: Writings 6 (Merrill Peterson, ed., 1984).

[64] See, e.g., 1 Samuel Eliot Morison, The Oxford History of the American People 273 (1972) (noting colonial reaction to tea monopoly); Thomas Fleming, Liberty! 75-76 (1997) (British trade restrictions “virtually made the government the East India Company’s permanent partner.”); John C. Miller, Origins of the American Revolution 341-342 (1943) (“The menace of monopoly united virtually all businessmen—whether smugglers or honest traders—in opposition to the East India Company.”)

[65] Adam Smith wrote that “The price of monopoly is upon every occasion the highest which can be got. The natural price, or the price of free competition, on the contrary, is the lowest which can be taken, not upon every occasion indeed, but for any considerable time together. The one is upon every occasion the highest which can be squeezed out of the buyers, or which, it is supposed, they will consent to give: The other is the lowest which the sellers can commonly afford to take, and at the same time continue their business.” Adam Smith, Wealth of Nations 65 (Harvard Classics ed. 1910) (1776). Note that software prices have consistently fallen while postage stamps have consistently risen; it seems clear that Microsoft would not qualify as a monopoly under Smith’s definition. See also Budd v. New York, 143 U.S. 517, 550-551 (1892) (Brewer, J., dissenting): “There are two kinds of monopoly, —one of law, the other of fact. The one exists when exclusive privileges are granted. Such a monopoly, the law which creates alone can break, and, being the creation of law, justifies legislative control. A monopoly of fact any one can break, and there is no necessity for legislative interference. It exists where any one, by his money and labor, furnishes facilities for business which no one else has. A man puts up in a city the only building suitable for offices. He has therefore a monopoly of that business; but it is a monopoly of fact, which any one can break, who, with like business courage, puts his means into a similar building.” See also George Reisman, Capitalism: A Treatise on Economics 375-440 (1996) (detailing two different meanings of term “monopoly.”)

[66] John Trenchard, “Trade and Naval Power the Offspring of Civil Liberty only, and cannot subsist without it.” (Feb. 3, 1721) in The English Libertarian Heritage 147 (David Jacobson, ed. 1994).

[67] Robert Rutland, George Mason: Reluctant Statesman 111-114 (emphasis added).

[68] Letter of Thomas Jefferson to John Adams, Oct. 28, 1813 reprinted in The Adams Jefferson Letters 387-392 (Lester J. Cappon ed., 1959).

[70] Thomas Jefferson, First Inaugural Address, reprinted in Peterson, supra note 63 at 494.

[71] Letter from Thomas Jefferson to Joseph Milligan (Apr. 6, 1816), reprinted in 14 Writings of Thomas Jefferson 456, 466 (A. Bergh ed. 1907) (emphasis added).

[72] James Madison, Property, reprinted in Madison: Writings 516 (Jack Rakove ed., 1999).

[74] See Bernard Bailyn, ed., The Debate on the Constitution (1993). The states were Massachusetts (id. at 1: 944), North Carolina (id. at 2:571), New Hampshire (id. at 2: 551), and New York (id. at 2:542).

[75] John Locke, Two Treatises of Government 328-329 (Peter Laslett ed. 1963) (1690).

[76] Federalist 43 (J. Madison). Actually, the British courts had held that copyright was not a common law right. See Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (1769).

[77] Letter from James Madison to Thomas Jefferson, New York, Oct. 17, 1788, reprinted in 1 The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826 at 562, 566 (James Morton Smith, ed. 1995).

[78] See also William Grampp, A Reexamination of Jeffersonian Economics, in Joseph Ernst, et al., eds., 1 Random House Readers in American History 393-404 (1970) (“What [Jefferson] wanted essentially was the increased incentive resulting from monopoly grants without the ill effects of monopoly.” Id. at 401)

[79] Letter from Thomas Jefferson to Isaac McPherson, Aug. 13, 1813, reprinted in Peterson, supra note 63 at 1287.

[80] James Madison, Notes on the Debates in the Federal Convention 638 (Andrienne Koch ed., 1966).

[87] As the Founders were well aware, the history of ancient Greece consisted largely of a series of bloody conflicts between rich and poor. As Will Durant writes, “Bitterer than the war of Greece with Persia, or of Athens with Sparta, is, in all the Greek states, the war of class with class.” Will Durant, The Life of Greece 281 (1939). The Founders were familiar with the class wars in—among other places—Corcyra, in 427 BC, Argos in 370 BC, or in Sparta in 207 BC. These revolutions had a routine pattern: the poor began agitating for a popular leader to challenge the legally-protected aristocracy, and eventually succeeded in abolishing debts, or seizing the property of the wealthy, and massacring them. Writes Durant, “The increasing bitterness of the class war left Greece internally as well as internationally divided when Philip pounced down upon it; and many rich men in the Greek cities welcomed his coming as the alternative to revolution.” Id. at 466-467.

[88] Federalist 44 (J. Madison). Note also that the Constitution specifically preserved “all debts contracted and engagements entered into before the adoption of this Constitution,” U.S. Const. Art. VI §1. The Founding generation’s belief in the sanctity of debt and contract is reflected in Ware v. Hylton, 3 Dall. ( 3 U.S.) 199 (1796), in which the Court held that the state of Virginia had no right to cancel debts owed to British creditors before the Revolution. Justice Chase held that “the immutable principles of justice; the public faith of the States ... the rights of the debtors ... all combine to prove that ample compensation ought to be made to all the debtors….” Id. at 245. Justice Paterson wrote “[c]onfiscation of debts is considered a disreputable thing among civilized nations of the present day,” id. at 255, and Justice Wilson held that “By every nation, whatever its form of government, the confiscation of debts has long been considered disreputable….” Id. at 281. But see Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1933) (upholding the constitutionality of a Minnesota act which extended the due dates on property rental and mortgage payments).

[89] See, e.g., Roscoe Pound infra note 189; Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of “Rights Management,” 97 Mich. L. Rev. 462 (1998) (dismissing free market economics as “‘just-so stories’ that mask the need for first-order social welfare choices,” and “ideology, not science.” Id. at 464-465).

[94] 1827 Va LEXIS 27 (1827). Since the exercise of a lawful trade was a common law right, and laws infringing common law rights were to be strictly construed (see infra text accompanying note 106) it followed that infringements on the common law right to a lawful occupation were to be strictly construed.

[97] Id. at 1114. This legal preoccupation with protecting the individual’s ability to earn a living is also revealed by the decisions concerning public access to fishing or hunting areas. In the 1811 case Peck v. Lockwood, 5 Day 22, 1811 WL 159 (Conn. 1811), the Connecticut Supreme Court held that at common law anyone might take oysters from a stream, even if another person owned the soil surrounding the stream; the landowner must show some right to exclusive fishing. “the right of fishing in such place where there is a flux and reflux of the sea, is a right common to every citizen, although the soil be the estate of a particular person.” This reflects the general presumption against exclusivity in the pursuit of a lawful occupation. “[A] man may have an exclusive privilege of fishing in an arm of the sea; but such right is not to be presumed; it must be proved[.]” 1811 WL 159 at *4. See also Warren v. Matthews, 1 Salk. 357, 91 Eng. Rep. 312 (1704); Carter v. Murcot, 4 Burr. 2162, 98 Eng. Rep. 127 (1768).

[103] Alexis de Tocqueville, Democracy in America 550-551 (J.P. Mayer ed. & G. Lawrence trans., HarperPerennial 1969) (1850).

[110] 13 N. Y. 378, 385-386 (1856). A large number of the cases involving interference with the right of livelihood concern temperance or prohibition laws. As one court put it, however, such regulations are legitimate not in spite of the right of a liquor purveyor to make his living in this fashion, but because “‘[t]o sell intoxicating liquor at retail is not a natural right to pursue an ordinary calling.’” Sherlock v. Stuart

96 Mich. 193, 197 (Mich. 1893). But see Baker v. Beckwith, 29 Ohio St. 314 (1876) (“At common law, it was lawful to sell or give away intoxicating liquors, and still continues so, except to the extent that the sale, or giving away, has been prohibited by the statute.” Id. at 19). In Mugler v. Kansas, 123 U. S. 623 (1887) the Supreme Court upheld restrictions on the sale of liquor against the challenge that it violated this common law right. The Court held that because liquor caused a variety of moral and physical ills, it was properly the subject of especially stringent controls. See also In re Hauck, 38 N.W. 269 (Mich. 1888) and cases cited therein.

[111] 11 Pet. (36 U.S.) 420, 547 (1837). See also Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824). Although it would beyond the scope of this paper to review these long and famous decisions, it is noteworthy that these cases are all concerned with the danger of granting exclusive commercial powers.

[112] Wayne McCormack, Economic Substantive Due Process and the Right of Livelihood, 82 Ky. L.J. 397, 399-400 (1994).

[113] Lawrence Friedman, A History of American Law 308 (1973); See also Poindexter v. Louisiana Financial Assistance Com., 275 F. Supp. 833 (E.D. La. 1967) (detailing the history of Louisiana’s mechanisms for segregating public schools).

[116] Siegan, supra note 73 at 50. See Virginia v. Rives, 10 Otto (100 U.S.) 313, 317-318 (1879) (Fourteenth Amendment intended to constitutionalize Civil Rights Act of 1866); Buchanan v. Warley, 245 U.S. 60 (1917) (same); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992) (“Virtually everyone agrees that Section 1 of the Fourteenth Amendment was intended at least to empower Congress to pass the Civil Rights Act of 1866. Most students of history would go a bit further and say that the Amendment actually writes the substance of the 1866 Act into the Constitution.” Id. at 1389-1390); Kenyon Bunch, The Original Understanding of the Privileges and Immunities Clause, 10 Seton Hall Const. L.J. 321 (2000) (“Most students of the Privileges or Immunities Clause ... agree on one point: the Privileges or Immunities Clause was meant to protect, in some fashion, the freedoms enumerated in the Civil Rights Act of 1866. Property and contract rights, access to the courts and personal security were the principal concerns of the Act.” Id. at 332).

[117] See Cong. Globe, 39th Cong., 1st Sess. 2765 (1866).; see also Cong. Globe, 42d Cong. 1st Sess. 69 (1871) (statement of Sen. Shellabarger); John Pomeroy, Some Account of the Work of Stephen J. Field as a Legislator, State Judge, and Judge of the Supreme Court of the United States 124 (1881) (“[The Fourteenth Amendment] was intended to make everyone within the jurisdiction of the United States a free man, and as such to allow him to pursue his happiness by the ordinary avocations of life upon the same terms and conditions as others.”)

[121] In re Tiburcio Parrott, 1 F. 481, 506 (C.C.D. Ca. 1880). See further Trisha Olson, The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment, 48 Ark. L. Rev. 347 (1995).

[127] Id. at 321-322. Likewise, in Munn v. Illinois, 4 Otto (94 U.S.) 113 (1876), Justice Field wrote in his dissent that “[b]y the term ‘liberty, as used in the [Fourteenth Amendment], something more is meant than mere freedom from physical ‘restraint’ or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; that is, to pursue such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment.” Id. at 142

[128] Ex Parte Garland 4 Wall. (71 U.S.) 333, 370 (1866) (argument of Mr. Reverdy Johnson).

[129] Livestock Dealers’ & Butchers’ Ass’n v. Crescent City Livestock Landing & Slaughter House Co.,15 F Cas 649, 652 (D. La. 1870). Likewise, in State ex rel. Belden v. Fagan, 22 La. Ann. 545 (La. 1870), another case arising out of the Louisiana butchery regulations, the Supreme Court of Louisiana held that “while for sanitary reasons, [the state legislature] had the right to compel the butchers to abandon the locality where their slaughterhouses are situated ... imposing this limitation upon their natural rights for the public good, justifiable only by the necessity, it had not the right to create this monopoly in favor of the Slaughter House Company.... It had no right to place unnecessary restrictions upon labor, to compel the numerous persons pursuing the occupation of butchers to repair to the premises of the Slaughter House Company and there pay tribute to it for the privilege of pursuing their usual occupation or earning their living.” Id. at 559.

[133] Id. at 61. In Noe v. Morristown, 128 Tenn. 350 (1913), the Tennessee Supreme Court emphasized this fact: “We are referred to the Slaughter-House Cases as an authority in support of such a monopoly. That case does hold that it was within the power of the legislature of the State of Louisiana to establish such a monopoly as to the place where the slaughter was to be done, but distinctly pointed out that at that place everybody was permitted to do their own slaughtering, and the company in charge of the place was bound under heavy penalties to permit them.” Id. at 356 (citation deleted)).

[138] See, e.g., John Smouche, Keeping the Faith: A Cultural History of the Supreme Court 325-326 (2000); Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385 (1992); Bernard Siegan, Supreme Court’s Constitution 46-71 (1987); Kimberly Shankman and Roger Pilon, Reviving the Privileges and Immunities Clause to Redress the Balance among the States, Individuals and the Federal Government. Cato Institute Policy Analysis no. 326. (Nov. 23, 1998); Kenyon Bunch, The Original Understanding of the Privileges and Immunities Clause, 10 Seton Hall Const. L.J. 321 (2000); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (Oct. 1993); Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 521-536 (1989).

[143] Lawrence Friedman, A History of American Law 397 (1974) (emphasis deleted). See also Lawrence Friedman, Freedom of Contract and Occupational Licensing 1890-1910: A Legal and Social Study, 53 Cal. L. Rev. 487 (1965).

[149] Id. at 121-122. Note that the Court here, at the height of the laissez-faire era which allegedly proscribed legislative attempts to protect consumers and society, nevertheless concluded “But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society.” Id.

[150] Memphis v. Bing, 94 Tenn. 644 (1895). See also State v. Pullman’s Palace Car Company, 64 Wis. 89, (1885); Combined Saw and Planer Co. v. Flournoy, Sec’y., 88 Va. 1029 (1892); Merced County v. Helm & Nolan, 102 Cal. 159 (1894) (holding that business license taxes must be strictly construed); Mace v. Buchanan, 52 S.W. 505 (Tenn. Ch. 1899); Washington Electric Vehicle Transportation Co. v. District of Columbia, 19 App. D.C. 462 (1902). See also infra, Appendix B.

[153] In Cummings v. Missouri, Justice Field penned perhaps the most succinct defense of substantive due process ever. “The Constitution,” he wrote, “deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.” Cummings, 71 U.S. at 325. See also Davidson v. New Orleans, 96 U.S. 97, 102 (1877) (“can a State make any thing due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail[.]”); John C. Eastman and Timothy Sandefur, Justice Stephen Field: Frontier Justice or Justice on the Natural Rights Frontier? 6 Nexus J. Op. 121 (Fall, 2001) (in press) (reviewing Field’s views on right to earn a living).

[154] 118 U.S. 356 (1886); See also In re Parrott, supra note 121 (striking down law prohibiting the hiring of Chinese); Lin Sing v. Washburn, 20 Cal. 534 (1862) (striking down tax on Chinese laborers as unconstitutional).

[163] Alan Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3, 42-43 (1999). See also Siegan, supra note 73 at 210-225

[165] See, e.g., In re Jacobs, 98 N.Y. 98, 115 (1885): “When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the courts must be able to see that it has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is appropriate and adapted to that end. This we have not been able to see in this law, and we must, therefore, pronounce it unconstitutional and void.” The myth that Lochner announced a “new” and “unprecedented” rule has long deserved debunking. The reader will find a list of cases predating Lochner, with holdings identical to that the Court reached—that the Court must look behind the scenes of a police power regulation which infringes on economic rights—in Appendix B.

[168] 239 U.S. 33 (1915). See also Truax v. Corrigan, 257 U. S. 312, 334-335 (1921): “The Fourteenth Amendment ... intended ‘...that all persons should be equally entitled to pursue their happiness and acquire and enjoy propety; ... that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition….” quoting Barbier v. Connolly 113 U.S. 27, 31 (1885).

[170] Id. at 41. This, of course, began the notorious era of economic substantive due process and “rampant laissez-faire,” and the cases are more prevalent during this period. See infra, Appendix C.

[173] See also Commonwealth v. Fowler, 28 S.W. 786, 787 (Ky. 1894): “Every one has the right to follow an innocent calling without permission from the government. He may do with his own whatsoever he pleases, so that he injure no one else. We agree with learned counsel that ‘the doctrine of legislative permission, as a condition precedent to the conduct of any useful or harmless business, is grossly repugnant to those obvious principles of human right which lie at the foundation of just government among men.’ So, then, without governmental interference or consent, the farmer may till his soil, the merchant may buy and sell, the lawyer and the doctor practice their professions, and the druggist and pharmacist compound their medicines. And if, by reason of shysters and quacks, an injured people demand protection, or if, because ill-behaved druggists or pretended pharmacists debauch the public morals by dealing out intoxicating liquors and nostrums as beverages, yet the pursuit of these callings cannot be prohibited.”

[175] Until the New Deal, there was broad consensus among American jurists that, as Justice Chase put it in Calder, supra note 90, “a law that takes property from A. and gives it to B ... is against all reason and justice.” Id. See e.g. Goshen v. Stonington, 4 Conn. 209 (1822) (“If, for example, the legislature should enact a law, without any assignable reason, taking from A. his estate, and giving it to B., the injustice would be flagrant, and the act would produce a sensation of universal insecurity. Id. at 222); Wilkinson v. Leland, 27 U.S. 627, 658 (1829) (“We know of no case, in which a legislative act to transfer the property of A. to B. without his consent has ever been held a constitutional exercise of legislative power in any state of the union.”); Taylor v. Porter, 4 Hill 140 (N.Y. 1843) (“The property of A is taken, without his permission, and transferred to B. Can such a thing be rightfully done? Has the Legislature any power to say it may be done?” Id. at 143).

[181] Id. at 554. Yet again, the straw man accusation—that the Adkins Court was defending “unlimited freedom of contract”—is belied by Sutherland’s own words. “There is, of course, no such thing as absolute freedom of contract,” he wrote. Id. at 561. “The liberty of the individual to do as he pleases, even in innocent matters, is not absolute. It must frequently yield to the common good…. But, nevertheless, there are limits to the power, and when these have been passed, it becomes the plain duty of the courts in the proper exercise of their authority to so declare. To sustain the individual freedom of action contemplated by the Constitution, is not to strike down the common good but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members. Id. at 561.

[184] Lessee of Brewer v. Blougher, 39 U.S. 17, 19 (1840) (Argument of Mr. Pigman, for Plaintiff).

[186] See, e.g., Learned Hand, The Spirit of Liberty (1960); Robert McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 Sup. Ct. Rev. 34, 34-45; Bernard Siegan, Separation of Powers and Economic Liberties, 70 Notre Dame L. Rev. 415 (1995); Roger Pilon, The Purpose and Limits of Government, Cato’s Letters no. 13 (Cato Institute, 1999).

[188] Barsky v. Bd. of Regents of the State of New York, 347 U.S. 442, 472 (1954) (Douglas, J., dissenting).

[192] John Semouche, Keeping the Faith: A Cultural History of the Supreme Court, 151 (2000)

[194] Paul Kens, Justice Stephen Field: Shaping Liberty from The Gold Rush to The Gilded Age 117 (1997). Nowhere in his book does Kens mention Edward Coke, which is ironic, since elsewhere he notes that the Court’s holding in Munn, supra note 127—that the state could regulate businesses which are “affected with a public interest”—was based on the “age-old legal authority” of Lord Hale, another seventeenth-century English Chief Justice. Id. at 161. See further Eastman and Sandefur, supra note 153.

[195] John Nowak, Essay on the Bill of Rights: The ‘Sixty-Something’ Anniversary of the Bill of Rights,1992 U. Ill. L. Rev. 445, 452-453 (1992).

[197] See, e.g., Chicago v. Rumpff, 45 Ill. 90, 99 (1867): “[Cities] no doubt, have the power to designate the particular quarter of the city within which the business may be conducted, and prohibit it in others, and regulate and restrain them so as to prevent their becoming offensive or injurious, but in doing so all persons should be free to engage in the business within those localities by conforming to the municipal regulations.” See also Chicago Packing & Provision Co. v. Chicago, 88 Ill. 221 (1878) (explaining police power right to control businesses).

[199] As Roger Pilon writes, “The value-laden distinction between two kinds of rights [“fundamental” rights versus “economic” rights, from Carolene Products] is nowhere to be found in the Constitution, of course. It was written from whole cloth to pave the way for the redistributive and regulatory programs of the New Deal. Indeed, Rexford Tugwell, one of the principal architects of the New Deal, said as much some 30 years after Carolene Products was decided: ‘To the extent that these [New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” Pilon, supra note 1861.

[202] It is ironic that Justice Brandeis of all people endorsed this position. Brandeis is associated with the so-called “Brandeis Brief,” a mechanism by which a mound of sociological and statistical data would be submitted to a court to illustrate the validity of a proposed scheme. But once on the Court, Brandeis held that no such evidence was even necessary. I am indebted to Professor Randy E. Barnett for this observation. It is also ironic that Brandeis, Holmes, and others, are seen as opponents of “formalism” in law, when Carolene Products’ presumption of constitutionality is a prime exercise in formalism. Under rational relationship scrutiny, if the government’s activity appears to be an economic regulation, the Court refuses to look behind the surface of the regulation to the actual effect, or real motive of that regulation. This is formalism, pure and simple.

[204] City of London’s Case, supra note 41 at 669. Another ironic note is to be found in Bush v. Seabury, 8 Johns. 418, 1811 WL 1384 (N.Y. Sup. 1811). There a statute permitted city officials to regulate public markets, with the single exception that they could not regulate the price of bread offered for sale. The court rejected the plaintiff’s arguments against the statute as reductio ad absurdam: “Extravagant cases may be stated of the abuse of the power,” the court said, “as by an ordinance to regulate the sale of wheat, &c. but this is not a logical way to test the existence of the power.” Id. at *2. By the time of Wickard, what the New York court had thought too absurd for discussion had become national economic policy and constitutional law.

[210] Take, for example, United States v. Usery, 426 U.S. 833 (1976). In this case, the Supreme Court struck down a federal minimum wage law which set wage standards for employees of State governments. Nowhere in the opinion did the Court consider the rights of those employees who would inevitably lose their jobs as a result of the forced increase in costs of employment. The Court instead held that the law would “significantly alter or displace the States’ abilities to structure employer-employee relationships.” Id. at 851. Yet the minimum wage statute in Adkins significantly altered the employee’s and the employer’s ability to structure their own relationships. One would think that such private actors should have even more freedom of contract than a State government, since the latter is a state actor. But Usery was based purely on protecting the efficient working of governments, and was not truly concerned with the rights of employees to seek employment on their own terms.

[213] 521 U.S. at 751. See also id. at 759. Compare with State v. Goodwill, State v. Goodwill, 33 W. Va. 179, 183 (1889): “The enjoyment or deprivation of these rights and privileges, [i.e., the right to pursue a lawful occupation] constitutes the essential distinction between freedom and slavery; between liberty and oppression.”

[214] Seminole Tribe v. Florida, 517 U.S. 44, at 166 (1996) (Souter, J., dissenting) (citations omitted). Souter is generally considered the most liberal member of today’s Court, but he is joined in this interpretation by the arch-conservative Robert Bork. See Bork, supra note 140 at 44-49 (“Perhaps there ought to have been a constitutional provision invalidating those [economic regulations]. But there was not, and the Court had no business striking them down.” Id. at 47).

[217] McCormack, supra note 112. See also Wayne McCormack, Property and Liberty: Institutional Competence and the Functions of Rights, 51 Wash & Lee L. Rev. 1 (Winter, 1994); Peter Huang, Preventing Post-PepsiCo Disaster: A Proposal for Refining the Inevitable Disclosure Doctrine, 15 Computer & High Tech. L.J. 379 (“The government should not be able to take away the right to control one’s livelihood without adequate safeguards.” Id. at 405); Alan Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3 (1999) (“any abridgment of the right to pursue a calling or to make a contract that does not fall within the police power so defined is arbitrary and inconsistent with the meaning attributed to the Due Process Clause by those authorities upon which Justice Souter relie[s].” Id. at 21)

[221] See, e.g., Charles L. Black, Jr., Further Reflections on the Constitutional Justice of Livelihood, 86 Colum. L. Rev. 1103 (1986). A long list of articles in which “[s]cholars have put forward a range of normative arguments in favor of welfare rights” is to be found in Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1134 n. 9 (April, 1999).

[222] The bold assertion that there is no distinction between positive rights and negative rights is nothing new. See Tom G. Palmer, review of The Cost of Rights, in Cato Journal (Fall, 1999) <http://www.cato.org/pubs/journal/cj19n2/cj19n2-10.pdf>.

[227] This point is more thoroughly developed in Arkes, supra note 182 at 51-61.

[228] Jones v. Temmer, 829 F. Supp. 1226 (D. Co. 1993), vacated 57 F.3d 921 (10th Cir. 1995). But see Checker Cab Co. v. Johnson City, 187 Tenn. 622 (1948) (striking down taxi licensing scheme because “the power in a municipal corporation to license or regulate a useful trade does not carry the implied authority to…create a monopoly therein.” Id. at 627).

[229] Id. at 1233-1234 (quoting Galahad v. Weinshienk, 555 F. Supp. 1201, 1207 (D. Colo. 1983)).

[230] Craigmiles v. Giles, 110 F. Supp. 2d 658 (E.D. Tenn. 2000). This case is currently on appeal before the Sixth Circuit.

[234] Wilk v. AMA, 895 F.2d 352 (7th Cir. 1990); Chiropractic Coop. Assn. Of Michigan v. AMA, 867 F.2d 270 (6th Cir. 1989); Myers v. ADA, 695 F.2d 716 (3rd Cir. 1982). Due to “rational relationship scrutiny,” recent cases addressing the right to earn a living have in general been antitrust cases as opposed to cases against wrongful government action. See, e.g., Twine v. Liberty Nat’l Life Ins. Co., 311 So. 2d 299 (Ala. 1975). Private contracts in restraint of professions have been disfavored by the common law for centuries, just as state action which does the same thing. Cf. Mitchell v. Reynolds, supra note 58; Tomlinson v. Humana, Inc., 495 So. 2d 630 (Ala. 1986).While the AMA cases did not involve issues of state action, the unique position of the AMA in licensing doctors should raise such questions.

[235] Wilk, 895 F.2d at 352 (citing Nat’l. Society of Professional Engineers v. United States, 435 U.S. 679 (1978)).

[236] See, e.g., Lebbos v. Judges of Superior Court, 883 F.2d 810 (9th Cir. 1989) (“Substantive due process ‘protects a liberty or property interest in pursuing the ‘common occupations or possessions of life.” Id. at 818 (quoting Benigi v. Hemet, 868 F. 2d 307, 910 (9th Cir. 1988). See also Chalmers v. Los Angeles, 762 F.2d 753, 757 (9th Cir. 1985).

[237] See, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281 (1985).

[238] See, e.g., Norfolk Redevelopment & Housing Authority v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 35 (1983).

[241] Id. at 403. The Court is referring to the Article IV privileges and immunities clause, not to the Fourteenth Amendment. See also Hicklin v. Orbeck, 437 U.S. 518 (1978) (privileges and immunities clause of Art. IV prohibits “state discrimination against nonresidents seeking to ply their trade, practice their occupation, or pursue a common calling within the State.” Id. at 524).

[246] Id. at 228 (citations omitted); see also Commodity Trend Svc v. SFTC 1999 U.S. Dist. LEXIS 15877 (E.D. Ill. 1999).

[248] People v. Dr. Scholl’s Foot Comfort Shops, Inc., 277 N.Y. 151, 13 N.E.2d 750 (1938).

[249] 146 Conn. 613, 617 (1959). See also Hart v. Board of Examiners of Embalmers, 129 Conn. 128 (1942) (embalmer’s licensing scheme “restricts a common right and thus derogates from the common law and should be strictly construed in favor of the right.” Id. at 132).

[250] State v. Capital Coal Co., 54 Wyo. 176, 183 (1939) See also County of Natrona v. Casper Air Serv., 536 P.2d 142 (Wy. 1975).

[253] See Conway v. State Bar, 47 Cal. 3d 1107, 1134 n. 7 (1989). See also Sei Fujii v. State, 38 Cal. 2d 718 (1952) (restrictions on immigrants owning land interferes with right to earn a living).

[256] Nagle v. Bd. of Ed., 63 Haw. 389, 393-394 (1981) (citing Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)).

[257] See, e.g., Ribotsky v. Lupkin, 114 Misc. 2d 913, 921 (Sup. Ct. N.Y. 1982); Howell v. Benson, 105 Misc. 2d 757, 758 (Sup. Ct. N.Y. 1980).

[258] Di Carlo v. State Liquor Auth., 54 Misc. 2d 482, 485 (Sup. Ct. N.Y. 1967).

[259] Ricketts v. City of New York, 181 Misc. 2d 838, 843 (Sup. Ct. N.Y. 1999) citing Telegraph Sav. & Loan Assn. v Federal Sav. & Loan Ins. Corp., 564 F Supp 880, 891 (N.D. Ill. 1982). It is particularly interesting to compare this case with Robinson v. Watkins, supra note 62, which involved practically the same facts—only, almost three centuries earlier.

[260] State ex rel. Hosack v. Yocum, 136 Fla. 246, 251 (1939). Accord, Campos et al v. INS, 32 F. Supp 2d 1337, 1347 (S.D. Fl. 1998).

[261] Silverstein v. Gwinnett Hospital Authority, 861 F.2d 1560, 1566 (11th Cir. 1988).

[262] Jones v. Board of Commissioners of the Alabama State Bar, 737 F.2d 996, 1000 (11th Cir. 1984). It is of course true that the Supreme Court has not applied strict scrutiny to infringements of this right, since 1937.

[263] As one commentator has put it, “embracing economic substantive due process would require that liberals reject some deeply ingrained beliefs and practices. For example, they would have to abandon Progressive myths about the old Court, quit casting a blind eye on government’s economic irrationality, partiality, and predatoriness, and stop winking at pluralist log-rolling. Worst of all, liberals would have to admit that the supposedly malign and ignorant reactionaries on the old Court knew things about business and government that they and their Progressive forbears were unwilling or unable to see.” Michael J. Phillips, The Slow Return of Economic Substantive Due Process, 49 Syracuse L. Rev. 917, 968-969 (1999).

[264] John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1469 (May, 1992 ).

[265] H.L. Mencken once wrote of Oliver Wendell Holmes that “[t]he weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct…. The typical lawmaker of today is a man wholly devoid of principle—a mere counter in a grotesque and knavish game. If the right pressure could be applied to him, he would be cheerfully in favor of polygamy, astrology, or cannibalism.” If Holmes’ views were generally accepted, Mencken wrote, “there would be scarcely any break at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.” H.L. Mencken, Mr. Justice Holmes, reprinted in A Mencken Chrestomathy 260-261 (1982) (1949).