Amicus Curiae Brief — Dipendra Tiwari, et al., Petitioners v. Eric Friedlander, Secretary, Kentucky Cabinet for Health and Family Services, et al.

No. 22-42

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------DIPENDRA TIWARI; KISHOR SAPKOTA;

GRACE HOME CARE, INC.,

Petitioners,

v.

ERIC FRIEDLANDER, in his official capacity as

Secretary of the Kentucky Cabinet for Health and

Family Services; ADAM MATHER, in his official capacity

as Inspector General of Kentucky,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

---------------------------------♦--------------------------------BRIEF OF GOLDWATER INSTITUTE AND

MANHATTAN INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@

manhattan-institute.org

TIMOTHY SANDEFUR*

SCHARF-NORTON CENTER

FOR CONSTITUTIONAL

LITIGATION AT THE

GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, AZ 85004

(602) 462-5000

litigation@

goldwaterinstitute.org

*Counsel of Record

Counsel for Amici Curiae

Goldwater Institute and Manhattan Institute

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Does the Fourteenth Amendment require meaningful review of restrictions on the right to engage in a

common occupation?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iii

IDENTITY AND INTEREST OF AMICI

CURIAE ............................................................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

5

I.

The right to earn a living is a fundamental

constitutional right ....................................

5

A. The right to earn a living is essential

to any scheme of ordered liberty .........

6

B. The right to earn a living is also deeply

rooted in this nation’s history and tradition .................................................... 11

II.

Decisions relegating the right to earn a

living to secondary status are poorly reasoned and untenable .................................. 18

III.

The Court should take this opportunity to

revisit the viability of The SlaughterHouse Cases ............................................... 22

CONCLUSION..................................................... 25

iii

TABLE OF AUTHORITIES

Page

CASES

Allen v. Tooley, 80 Eng. Rep. 1055 (K.B. 1615) ...........11

Bartemeyer v. Iowa, 85 U.S. 129 (1873) ......................23

Borden’s Farm Prods. Co. v. Baldwin, 293 U.S.

194 (1934) .......................................................... 19, 20

Bradwell v. Illinois, 83 U.S. (16 Wall.) 130

(1872) .......................................................................15

Brusznicki v. Prince George’s Cnty., No. 21-1621,

2022 WL 303680 (4th Cir. Aug. 2, 2022) .................14

Chamberlain of London’s Case, 77 Eng. Rep. 150

(K.B. 1590) ...............................................................12

City of London’s Case, 77 Eng. Rep. 658 (K.B.

1610) ........................................................................17

Colgate v. Harvey, 296 U.S. 404 (1935).......................24

Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa.

1823) ........................................................................14

Courtney v. Danner, 141 S.Ct. 1054 (2021) ................24

Courtney v. Danner, 572 U.S. 1149 (2014) .................24

Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) .........3

Darcy v. Allen, 77 Eng. Rep 1260 (K.B. 1602) ............12

Davenant v. Hurdis, 72 Eng. Rep. 769 (K.B.

1598) ........................................................................12

Dent v. West Virginia, 129 U.S. 114 (1889) ............. 3, 16

Dolan v. City of Tigard, 512 U.S. 374 (1994) ................2

Flemming v. Nestor, 363 U.S. 603 (1960) ...................20

iv

TABLE OF AUTHORITIES—Continued

Page

Gonzalez v. United States, 553 U.S. 242 (2008) .........18

Hettinga v. United States, 677 F.3d 471 (D.C. Cir.

2012) .................................................................... 3, 21

Lucas v. S.C. Coastal Council, 505 U.S. 1003

(1992) .......................................................................10

Lynch v. Household Fin. Corp., 405 U.S. 538

(1972) .......................................................................10

Madden v. Kentucky, 309 U.S. 83 (1940) ....................24

Marbury v. Madison, 5 U.S. 137 (1803) ......................24

McDonald v. City of Chicago, 561 U.S. 742

(2010)..................................................... 1, 22, 23, 24

Meyer v. Grant, 486 U.S. 414 (1988) ...........................10

Moore v. City of E. Cleveland, 431 U.S. 494

(1977)...................................................................... 5

Muller v. Oregon, 208 U.S. 412 (1908) ........................15

N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct.

2111 (2022) ................................................................8

Nashville, C. & St. Louis Ry. v. Walters, 294 U.S.

405 (1935) ................................................................19

Nebbia v. New York, 291 U.S. 502 (1934).... 3, 18, 19, 20

Palko v. Connecticut, 302 U.S. 319 (1937) .......... 5, 9, 11

Patel v. Tex. Dep’t of Licensing & Regulation,

469 S.W.3d 69 (Tex. 2015) .........................................3

Polk Co. v. Glover, 305 U.S. 5 (1938) ...........................19

Romer v. Evans, 517 U.S. 620 (1996) ..........................20

v

TABLE OF AUTHORITIES—Continued

Page

Saenz v. Roe, 526 U.S. 489 (1999) ...............................24

Schware v. Bd. of Exam’rs, 353 U.S. 232 (1957) ...........4

Singleton v. North Carolina Department of

Health & Hum. Servs., No. COA 21-558 (N.C.

Ct. App., pending)......................................................1

Takahashi v. Fish & Game Comm’n, 334 U.S.

410 (1948) ................................................................16

Tattered Cover, Inc. v. City of Thornton, 44 P.3d

1044 (Colo. 2002) .....................................................10

The Antelope, 23 U.S. (10 Wheat.) 66 (1825) ............ 7, 8

The Ipswich Tailors’ Case, 77 Eng. Rep. 1218

(K.B. 1615) ...............................................................11

The Slaughter-House Cases,

83 U.S. 36 (1872) ..................................... 3, 22, 23, 24

Truax v. Raich, 239 U.S. 33 (1915) ....................... 16, 17

United States v. Carlton, 512 U.S. 26 (1994) ..............21

United States v. Carolene Prods. Co., 304 U.S.

144 (1938) .................................................... 19, 20, 21

United States v. Gonzalez-Lopez, 548 U.S. 140

(2006) .......................................................................10

VanHorne’s Lessee v. Dorrance, 2 U.S. 304

(C.C.D. Pa. 1795) .....................................................14

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624

(1943) .........................................................................7

Weaver of Newbery’s Case, 72 Eng. Rep. 962

(K.B. 1616) ...............................................................11

vi

TABLE OF AUTHORITIES—Continued

Page

Williamson v. Lee Optical, 348 U.S. 483 (1955) .........20

Women’s Surgical Center, LLC v. Berry, 806

S.E.2d 606 (Ga. 2017) ................................................1

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ....................16

CONSTITUTIONAL PROVISIONS

Decl. of Independence, 1 Stat. 1 (1776) ......................14

U.S. Const. amend. XIV ...................................... passim

Va. Decl. of Rights § 1 (1776) .................................. 9, 14

OTHER AUTHORITIES

2 Ackerman, We the People: Transformations

(1998) .......................................................................20

Adams, The Epic of America (1931) ...........................17

Barnett & Bernick, The Original Meaning of the

Fourteenth Amendment (2021) ...............................22

Benjamin Franklin: Writings (Lemay ed., 1987) .......13

1 Blackstone, Commentaries (1765) ...........................12

Calabresi & Leibowitz, Monopolies and the

Constitution, 36 Harv. J.L. & Pub. Pol’y 983

(2013) .......................................................................11

3 Coke, Institutes (1797) ....................................... 11, 12

Cong. Globe, 42d Cong., 1st Sess. (1871) ....................22

de Jasay, Justice and Its Surroundings 150

(2002) .........................................................................8

vii

TABLE OF AUTHORITIES—Continued

Page

Debates in Parliament on the Resolutions and

Bill for the Abolition of Slavery (1834) ...................15

1 Elliott, Sinfulness of American Slavery (1850) .......15

Flatten, CON Job: Certificate of Need Laws Used

to Delay, Deny Expansion of Mental Health

Options (Goldwater Institute, 2018).........................1

Foner, Free Soil, Free Labor, Free Men (1970) ...... 15, 16

Gerhardt, Super Precedent, 90 Minn. L. Rev.

1204 (2006) ..............................................................24

Grossman, Everything Flows (Robert Chandler,

trans. 2009)..............................................................10

Hessler, A Social History of Soviet Trade (2004) .......10

Jefferson: Political Writings (Appleby & Ball,

eds., 1999) ........................................................ 7, 9, 13

Locke, Second Treatise (Laslett, rev. ed. 1963) ..........13

Madison: Writings (Rakove, ed., 1999).......................14

Mayer, Liberty of Contract (2011) ..............................11

McCloskey, Economic Due Process and the

Supreme Court, 1962 Sup. Ct. Rev. 34 (1962) ........21

Palmer, Realizing Freedom (2d ed. 2014) .....................6

Sandefur, Insiders, Outsiders, and the American

Dream: How Certificate of Necessity Laws

Harm Our Society’s Values, 26 Notre Dame

J.L. Ethics & Pub. Pol’y 381 (2012) ..........................1

viii

TABLE OF AUTHORITIES—Continued

Page

Sandefur, State “Competitor’s Veto” Laws and

the Right to Earn A Living: Some Paths to

Federal Reform, 38 Harv. J.L. & Pub. Pol’y

1009 (2015) .................................................... 1, 16, 22

Sandefur, The Conscience of The Constitution

(2014) .......................................................................16

Sandefur, The Permission Society (2016) .....................8

1 Smith, An Inquiry Into the Nature & Causes of

the Wealth of Nations (Indianapolis: Liberty

Fund, 1976) ....................................................... 13, 14

Smith, Judicial Review in an Objective Legal

System (2015) ............................................................6

The Complete Lincoln-Douglas Debates of 1858

(Angle, ed., 1991) .....................................................15

Tribe, American Constitutional Law (2d ed.

1988) .................................................................. 21, 22

1

IDENTITY AND INTEREST OF AMICI CURIAE1

The Goldwater Institute (“GI”) is a public policy

foundation devoted to the principles of individual freedom and limited government. Through its ScharfNorton Center for Constitutional Litigation, GI litigates and files amicus briefs when its or its clients’

objectives are implicated. GI devotes substantial resources to defending the constitutional right to earn a

living—in state and federal courts, see, e.g., Women’s

Surgical Center, LLC v. Berry, 806 S.E.2d 606 (Ga.

2017); Singleton v. North Carolina Department of

Health & Hum. Servs., No. COA 21-558 (N.C. Ct. App.,

pending); McDonald v. City of Chicago, 561 U.S. 742

(2010). GI scholars have also published extensively on

the constitutional right to earn a living—and how Certificate of Need laws like those challenged here violate

this right. See, e.g., Flatten, CON Job: Certificate of

Need Laws Used to Delay, Deny Expansion of Mental

Health Options (Goldwater Institute, 2018)2; Sandefur,

State “Competitor’s Veto” Laws and the Right to Earn

A Living, 38 Harv. J.L. & Pub. Pol’y 1009 (2015);

Sandefur, Insiders, Outsiders, and the American

Dream: How Certificate of Necessity Laws Harm Our

1

Pursuant to Rules 37.6 and 37.2(a), all parties consented to

this brief ’s filing. Counsel of record for all parties received notice

at least 10 days before the due date of amici’s intention to file this

brief. Amici affirm that no counsel for any party authored this

brief in whole or part, and no person or entity, other than amici,

their members, or counsel, made a monetary contribution for its

preparation or submission.

2

https://goldwaterinstitute.org/wp-content/uploads/2018/09/

Mark-CON-paper-web.pdf.

2

Society’s Values, 26 Notre Dame J.L. Ethics & Pub.

Pol’y 381 (2012). GI believes its experience and policy

expertise will assist this Court in its consideration of

the petition.

The Manhattan Institute for Policy Research

(“MI”) is a nonpartisan public policy research foundation whose mission is to develop and disseminate new

ideas that foster greater economic choice and individual responsibility. To that end, it has historically sponsored scholarship supporting economic freedom and

opposing government self-dealing. MI recently brought

on as a senior fellow one of this brief ’s counsel, Ilya

Shapiro, to direct its Constitutional Studies Program,

which aims to restore constitutional protections for individual liberty and limited government.

SUMMARY OF ARGUMENT

The right to earn a living, free of unreasonable

government interference, is a necessary component of

liberty. It is also deeply rooted in this nation’s history

and tradition. Indeed, it is so central to the concept of

“the American Dream” that it is impossible to imagine

any conception of the latter that fails to provide meaningful security for this crucial human right.

Yet this Court—notwithstanding occasional protestations to the contrary, cf. Dolan v. City of Tigard,

512 U.S. 374, 392 (1994)—has relegated this right to

second-class status. It has principally done so through

the application of “rational basis scrutiny,” a low-yield

form of judicial review so extremely biased against

3

plaintiffs that lawyers regard it as a joke. See, e.g.,

Craigmiles v. Giles, 312 F.3d 220, 225 (6th Cir. 2002)

(nothing fails rational basis review except laws that

“strik[e] us with ‘the force of a five-week-old, unrefrigerated dead fish.’ ” (citation omitted)).

Judges have sometimes admitted that this “test”

renders them incapable of discharging their legal and

ethical obligation to protect this precious individual

right. See, e.g., Hettinga v. United States, 677 F.3d 471,

480 (D.C. Cir. 2012) (Brown & Sentelle, JJ., dissenting);

Patel v. Tex. Dep’t of Licensing & Regulation, 469

S.W.3d 69, 99 (Tex. 2015) (Willett, J., concurring). Yet it

persists, with the consequence that the right to earn a

living for oneself and one’s family, which this Court

once correctly regarded as the “distinguishing feature

of our republican institutions,” Dent v. West Virginia,

129 U.S. 114, 121 (1889), has been effectively abandoned to the mercies of legislative factions that enjoy

free rein to enrich themselves through the political

process at the expense of minorities, and with no

meaningful checks or balances.

That is precisely the fate the Fourteenth Amendment was written to prevent. Yet thanks to the virtual

erasure of the Privileges or Immunities Clause in The

Slaughter-House Cases, 83 U.S. 36 (1872)—a decision

now almost universally acknowledged to be incorrect—

and the subsequent creation of the rational basis test

in Nebbia v. New York, 291 U.S. 502 (1934), as well as

the later reduction of even the minimal scrutiny

Nebbia promised, the courts have crippled the promise

of that amendment.

4

Consider the facts here. They may seem mundane,

but they describe just one of countless injustices attributable to the judiciary’s indefensible refusal to enforce the supreme law of the land. Dipendra Tiwari and

Kishor Sapkota want to open a home health care business to care for patients too ill to leave their homes—

and to provide these services in patients’ native language, which would naturally result in better outcomes for these disadvantaged patients. Yet they are

forbidden to do so, not because they are incompetent or

unqualified—but solely because the state has decided

to protect the economic interests of existing businesses

that don’t want to compete fairly in the marketplace.

Kentucky’s Certificate of Need (“CON”) laws allow

these existing firms to veto their own competition—a

sort of heckler’s veto that would never be tolerated,

were the right at issue free speech, or free religion, or

freedom of travel. CON laws deprive people like Dipendra and Kishor of their right to earn a living for reasons unrelated to their “fitness or capacity to practice”

their profession. Schware v. Bd. of Exam’rs, 353 U.S.

232, 239 (1957).

True, the state mustered an intellectual rationalization for this injustice, just as it might rationalize violating the freedoms of speech, religion, or travel. Were

it to attempt the latter, courts would examine the

state’s arguments and engage in the type of judgment

courts are expected to undertake. But because this

case concerns rights characterized as “economic,” existing precedent deprives Dipendra and Kishor of their

right to a judicial weighing of the evidence—and leaves

5

their freedom to make economic choices at the mercies

of legislative majorities—which is to say, abandons

them to the factionalism our constitutional checksand-balances system was supposed to rectify.

This Court should take this opportunity to make

two points clear: first, that the right to earn a living is

a fundamental constitutional right deserving meaningful judicial protection—and second, that this right

is also among the privileges or immunities of citizens

which no state may abridge.

ARGUMENT

I.

The right to earn a living is a fundamental

constitutional right.

This Court has held that the “liberty” protected by

the Constitution refers either to freedoms that are “of

the very essence of a scheme of ordered liberty”—

meaning principles that are of such a nature “that neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut, 302 U.S. 319, 325–26

(1937)—or to rights that are “deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977). The first is an objective

inquiry into the nature of constitutional freedom. The

latter is an historical inquiry into precedent. The right

to earn a living passes both tests.

6

A. The right to earn a living is essential to

any scheme of ordered liberty.

Rights are not mere customs or collective habits,

but principles rooted in human nature. They are best

seen as elements of that freedom which is inherent in

each person by virtue of the fact that each individual

is a self-directed entity responsible for her actions.

No person can alienate her self-responsibility, any

more than she can her education, tastes, hopes, or

fears. And where a person has a responsibility—where

she is accountable for her actions—she must also have

the freedom to choose those actions. See Palmer, Realizing Freedom 80 (2d ed. 2014) (“each [person] governs

in his or her own body [and]. . .is held by others to be

responsible for what he or she does with that body. . . .

[This] offer[s] a secure foundation for the entire structure of rights.”).

To survive and thrive, each person must provide

for herself—which means she must have the freedom

to act for self-preservation. Humans are not animals

whose mere instincts provide for their survival; instead, their flourishing depends on self-initiated

thought and action. Their lives therefore require that

they be free from force or fraud.

This freedom is limited solely by the fact that others have the same right. Although they may collaborate or cooperate to provide for themselves, each

person is ultimately responsible for her own flourishing—which means she must have a realm of liberty

within which to pursue that flourishing. See Smith,

7

Judicial Review in an Objective Legal System 106

(2015) (“[t]he concept of rights addresses a jurisdictional issue: Who should control an individual’s actions—that person himself, or someone else?”).

Rights are best seen as particular instances of

general liberty. Liberty is not a list of discrete freedoms; it means an “unobstructed action according to

our will, within the limits drawn around us by the

equal rights of others.” Thomas Jefferson to Isaac Tiffany, Apr. 4, 1819, in Jefferson: Political Writings 224

(Appleby & Ball, eds., 1999). But we conceptualize liberty, in the context of any particular situation, as a

“right.” Thus free speech means liberty with respect to

expression; freedom of religion means liberty with respect to belief—etc. Rights are therefore not social constructs—which is why they “may not be submitted to

vote” and “depend on the outcome of no elections.” W.

Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

They are instead aspects of that inherent freedom with

which each person is born. See The Antelope, 23 U.S.

(10 Wheat.) 66, 120 (1825) (“That every man has a natural right to the fruits of his own labour, is generally

admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against

his will, seems to be the necessary result of this admission.”).

This political/legal assumption that people are

free to act unless and until they harm others—embodied in the ancient sic utere maxim—is also no social

construct. It is a necessary consequence of the logical

principle that someone who makes a positive

8

assertion—i.e., who claims he may justly forbid another person from acting—bears the burden of justifying that claim. See id. at 107–08 (discussing onus

probandi with respect to individual liberty).

If it were otherwise—if people were presumptively

unfree, until they proved to the government’s satisfaction they should have freedom—the result would be

what philosopher Anthony de Jasay called “a needlein-the-haystack type of task,” because there is always

some potential objection to her being free. Justice and

Its Surroundings 150 (2002). “Taken literally, the presumption that every act may be harmful. . .would

freeze everything into total immobility.” Id. Indeed, the

person would be stuck in an infinite regress, having to

prove that she should be free to prove that she should

be free, etc. See Sandefur, The Permission Society 8–11

(2016). The presumption of liberty is therefore required by the logical rule of onus probandi. Cf. N.Y.

State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111, 2156

(2022) (“We know of no. . .constitutional right that an

individual may exercise only after demonstrating to

government officers some special need.”).

This is the (brief ) argument for all individual

rights. It does not depend on appeals to subjective preferences, religious faith, mere historical tradition, or

policy goals, let alone judicial fiat; it depends on the

facts of human nature. It is not mere rhetoric or custom, but an actual fact that people are “equally free

and independent and have certain inherent rights,”

which include “the enjoyment of life and liberty, with

the means of acquiring and possessing property, and

9

pursuing and obtaining happiness and safety.” Va.

Decl. of Rights § 1 (1776).

To put the point another way, no mature human

being is self-evidently marked out as the ruler of another. See Thomas Jefferson to Roger Weightman, June

24, 1826, in Jefferson: Political Writings, supra at 149

(“the mass of mankind has not been born with saddles

on their backs, nor a favored few booted and spurred,

ready to ride them legitimately.”). Consequently, each

person is a self-owner, responsible for her own survival

and success. And if she owns her faculties, she necessarily has the right to engage in voluntary transactions with others, including the right to exchange labor

for pay.

Individual rights must therefore include the right

to make economic decisions for oneself, just as one has

the right to make one’s own decisions about travel,

about whom to vote for, what opinions to express, what

books to read, etc.

It is impossible to imagine a “scheme of ordered

liberty,” Palko, 302 U.S. at 325, that does not include

the right to engage in economic transactions of one’s

choice. The dismal histories of countries where this

right has been effectively abolished is proof enough of

its vital importance. One need not detail the suffering

of such places as the Soviet Union, North Korea, or the

People’s Republic of China, where efforts to stamp out

economic liberty have led to unimaginable misery, to

recognize that “neither liberty nor justice” have existed

where this right was “sacrificed.” Id. at 326. Consider

10

just one example. In 1930s, the USSR effectively outlawed the sale of goods “with the intention of profiting.”

Hessler, A Social History of Soviet Trade 263 (2004).

This effective prohibition of all economic transactions

resulted in mass arrests,3 and only the fact that it was

haphazardly and arbitrarily enforced prevented total

social collapse. Id. at 264–65.

Economic liberty is also logically inextricable from

other rights. Obviously, the right to property includes

the right to buy, sell, and use it. Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1017 (1992). So, too, the right

to a lawyer at one’s trial would be meaningless without

the right to hire (i.e., to pay) the lawyer of one’s choosing. United States v. Gonzalez-Lopez, 548 U.S. 140,

147–48 (2006). The right of free speech would necessarily be curtailed by a law forbidding a person from

paying another to disseminate a message, cf. Meyer v.

Grant, 486 U.S. 414, 422–23 (1988), or to buy a book.

Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044,

1052 (Colo. 2002).

What this Court said of property rights in Lynch v.

Household Fin. Corp., 405 U.S. 538, 552 (1972), is

equally true of the right to make one’s own economic

choices: the alleged dichotomy between economic freedom and other kinds of freedom “is a false one,” because the right to engage in a business, “no less than

the right to speak or the right to travel, is in truth, a

3

The dissident writer Vasily Grossman vividly recalled the

way police arrested women “on the street for selling the string

shopping bags that they wove at night in their rooms.” Everything

Flows 81 (Robert Chandler, trans. 2009).

11

‘personal’ right,” and “a fundamental interdependence

exists” between it and other kinds of rights. “Neither

could have meaning without the other.” Economic liberty easily passes the Palko test: it is “of the very essence of a scheme of ordered liberty,” and “neither

liberty nor justice would exist if [it] were sacrificed.”

302 U.S. at 325–26.

B. The right to earn a living is also deeply

rooted in this nation’s history and tradition.

Unsurprisingly, this right to economic freedom has

a long legal pedigree. See generally Mayer, Liberty of

Contract 11–42 (2011); Calabresi & Leibowitz, Monopolies and the Constitution, 36 Harv. J.L. & Pub. Pol’y

983 (2013). It was a major concern to Sir Edward Coke,

who wrote extensively about the illegality of royal monopolies—i.e., licenses whereby the king allowed only

a single merchant to engage in a particular business.

See, e.g., 3 E. Coke, Institutes **181–85 (1797); 2 id.

*47.

As Chief Justice, Coke authored several decisions

declaring that subjects had the right “to use any trade

thereby to maintain [themselves] and [their]

famil[ies],” Allen v. Tooley, 80 Eng. Rep. 1055, 1055

(K.B. 1615), and that royal monopolies or guild rules

“which prohibit any from working in any lawful trade”

were void because they violated the Magna Carta’s

Law of the Land Clause. The Ipswich Tailors’ Case, 77

Eng. Rep. 1218, 1219 (K.B. 1615). See also Weaver of

12

Newbery’s Case, 72 Eng. Rep. 962, 962 (K.B. 1616);

Davenant v. Hurdis, 72 Eng. Rep. 769 (K.B. 1598);

Chamberlain of London’s Case, 77 Eng. Rep. 150, 150

(K.B. 1590). See also Darcy v. Allen, 77 Eng. Rep 1260

(K.B. 1602) (famous case reported, but not decided, by

Coke, declaring monopolies unlawful under Magna

Carta).

After being removed from his post by King James

I, Coke was elected to Parliament, where he authored

the 1623 Statute of Monopolies, forbidding the monarch from establishing them except for patents for inventions. Coke later devoted several passages of his

classic Institutes to explaining why any law “whereby

any person” is permitted “the sole buying, selling, making, working” of anything violates the Magna Carta. 3

E. Coke, Institutes *181. “[A] man’s trade is accounted

his life,” he wrote, “because it maintaineth his life, and

therefore the monopolist that taketh away a man’s

trade, taketh away his life, and therefore is. . .odious.”

Id.

On the basis of decisions by Coke and his contemporaries, William Blackstone remarked that “[a]t common law every man might use what trade he pleased.”

1 W. Blackstone, Commentaries *415 (1765). In the

American colonies, that right was viewed not only as a

matter of common law, but also of natural right. Among

the colonists’ objections to British rule was the fact

that the Crown imposed trade restrictions that arbitrarily deprived Americans of their right to earn a living. Benjamin Franklin wrote in 1768 that “[t]here

cannot be a stronger natural right than that of a man’s

13

making the best profit he can of the natural produce of

his lands,” but that British restrictions on iron manufactures, the making of hats, and other ordinary occupations violated this right by “oblig[ing] the Americans

to send their [raw materials] to England to be manufactured, and purchase back [finished goods] loaded

with the charges of a double transportation.” Causes of

the American Discontents before 1768 (1768), in Benjamin Franklin: Writings 613 (Lemay ed., 1987). Jefferson reiterated this point in his pamphlet, A Summary

View of the Rights of British America, complaining of

these restrictions that they existed solely “for the purpose of supporting not men, but machines, in the island

of Great Britain.” Jefferson: Political Writings, supra at

110.

John Locke had argued that each person “has a

property in his own person” and therefore “the labor of

his body, and the work of his hands” are “properly his,”

Second Treatise § 27 at 328 (Laslett, rev. ed. 1963), and

Adam Smith echoed this, writing that everyone has a

“property. . .in his own labor” which is “most sacred

and inviolable,” because it is “the original foundation

of all other property”—indeed, it is “[t]he patrimony of

the poor man,” who may lack an inheritance, but can

still climb the economic ladder as long as anti-competitive licensing laws and other monopolies do not stand

in his way. 1 An Inquiry Into the Nature & Causes of

the Wealth of Nations 138 (Indianapolis: Liberty Fund,

1976) (1776). For government “to hinder him from employing this strength and dexterity in what manner he

thinks proper without injury to his neighbor, is a plain

14

violation of this most sacred property,” Smith wrote,

and a “manifest encroachment upon the just liberty

both of the workman, and of those who might be disposed to employ him.” Id.

It was this conception of the right to put one’s

skills to use in providing for oneself that the founders

called the right to “pursu[e] and obtain[ ] happiness

and safety,” Va. Decl. of Rights § 1, or, more simply, the

right to “the pursuit of happiness.” Decl. of Independence, 1 Stat. 1 (1776). In VanHorne’s Lessee v. Dorrance,

2 U.S. 304, 310 (C.C.D. Pa. 1795), Justice Paterson explained that the phrase “pursuit of happiness” referred

to the right to engage in “honest labour and industry.”

Id. Accord, Corfield v. Coryell, 6 F. Cas. 546, 552

(C.C.E.D. Pa. 1823).4

As the English precedents made clear, this right

was often violated by government actions that prohibited new businesses from opening, or restricted how

they could operate, so as to protect existing firms

against legitimate competition. The founders regarded

these laws as unjust. As James Madison observed in

1792, a government that imposes “arbitrary restrictions, exemptions, and monopolies” that “deny to

part of its citizens [the] free use of their faculties” is

“not a just government.” Property (1792), in Madison:

Writings 516 (Rakove, ed., 1999).

4

Earlier this month, the Fourth Circuit described this right

as “fundamental,” albeit under the Privileges and Immunities

Clause of Article IV, not the Fourteenth Amendment. Brusznicki

v. Prince George’s Cnty., No. 21-1621, 2022 WL 3036980 at *5 (4th

Cir. Aug. 2, 2022).

15

The most glaring contradiction of the right of economic freedom was slavery5—and among the abolitionists’ foremost charges against that institution was that

it deprived slaves of their right to earn a living for

themselves. “The labor of the hands is the principal

source of profit to a very large portion of the human

family,” wrote one abolitionist. “[T]o deprive them of

this is to deprive them of everything. . . . Slavery robs

a man of the fruit of what he does. . .[so] that the master and his family should live by it.” 1 C. Elliott, Sinfulness of American Slavery 117 (1850). Abraham

Lincoln agreed. “In the right to eat the bread, without

leave of anybody else, which his own hand earns,” he

said, “[the slave] is my equal. . .and the equal of every

living man.” The Complete Lincoln-Douglas Debates of

1858 at 117 (Angle, ed., 1991). British abolitionists, too,

held that every person should have “the liberty to take

his labour, the only property he has, to the best market,

to select his own employer, to negotiate for his own

wages, to earn his own bread, and to enjoy the fruits of

his labour unmolested.” Debates in Parliament on the

Resolutions and Bill for the Abolition of Slavery 358

(1834).

The conviction that slavery was evil because it deprived individuals of their right to earn a living for

themselves formed the keystone of what historian Eric

Foner has called “free labor ideology,” which prioritized

5

Women, too, were denied the right to make their own economic choices, thanks in part to this Court’s rulings in such cases

as Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872), and Muller

v. Oregon, 208 U.S. 412 (1908).

16

“economic independence.” Free Soil, Free Labor, Free

Men 16–17 (1970). Northern victory in the Civil War

marked the triumph of that creed, and at the war’s

close, the Republicans sought to memorialize it in the

Constitution, in the form of the Fourteenth Amendment.

That Amendment not only made clear that the

freedmen were now citizens, but it also guaranteed the

privileges or immunities of citizenship (which included

the right to earn a living, see Sandefur, Right to Earn

a Living, supra at 41–44) and forbade the states from

depriving people of liberty without due process of

law—which meant, depriving people of liberty for arbitrary or unjustifiable reasons. See generally Sandefur,

The Conscience of The Constitution 71–120 (2014). Already by that time, the idea that America is a refuge

where the oppressed can enjoy economic liberty had

become central to the nation’s self-conception. This

Court called it the “distinguishing feature of our republican institutions.” Dent, 129 U.S. at 121.

Sadly, during the late nineteenth and early twentieth centuries, state governments frequently imposed

restrictions on the economic liberty of minorities, in order to exclude them from competing in the job market.

In cases such as Yick Wo v. Hopkins, 118 U.S. 356

(1886), Truax v. Raich, 239 U.S. 33 (1915), and

Takahashi v. Fish & Game Comm’n, 334 U.S. 410

(1948), this Court invalidated such laws, because “the

right to work for a living” is “the very essence of the

personal freedom and opportunity that it was the

17

purpose of the [Fourteenth] Amendment to secure.”

Truax, 239 U.S. at 41.

Obviously, government’s power to regulate businesses to protect public health and safety had always

been acknowledged as legitimate—even by Lord

Coke—but those regulations were legitimate only if

they actually served public needs and did not abridge

economic liberty to benefit incumbent firms. See, e.g.,

City of London’s Case, 77 Eng. Rep. 658, 663 (K.B.

1610) (“[T]he King may erect. . .a fraternity or society

or corporation of merchants, to the end that good order

and rule should be by them observed for the increase

and advancement of trade and merchandise, and not

for the hindrance. . .of it.”).

Today, the idea that economic freedom is central to

the nation’s self-conception is still embodied by

phrases such as “land of opportunity” and “the American Dream.” The latter phrase was the coinage of

James Truslow Adams, whose book The Epic of America (1931) defined it as “the belief in the common man

and the insistence upon his having, as far as possible,

equal opportunity in every way with the rich one.” Id.

at 135. And in the daily lives of actual Americans, this

liberty is relied upon far more than other rights that

typically characterized as “fundamental.” Relatively

few people exercise their right to vote, or to travel to

Washington, D.C., to petition Congress, compared to

the number who exercise their rights to sell labor, start

a business, sign contracts, or otherwise make their own

economic choices.

18

Justice Scalia once objected that the Court had

never “explain[ed] what makes a right fundamental in

the first place.” Gonzalez v. United States, 553 U.S. 242,

257 (2008) (Scalia, J., concurring). And it’s true that existing cases provide no single test. But the fundamentality of economic liberty is established by whatever

test one applies.

Its societal significance is obvious. Its importance

in individual life is profound. Its logical necessity as

part of human life is clear. Its historical pedigree is unimpeachable. It is implicitly guaranteed by the Constitution, which is a classical liberal document rooted in

private property, individual autonomy, and freedom of

exchange—with express references to ownership, contracts, and legal tender. And it is explicitly guaranteed

through its references to “liberty,” which necessarily

includes the right to make economic choices for oneself.

If anything is a fundamental constitutional right, economic liberty is.

II.

Decisions relegating the right to earn a

living to secondary status are poorly reasoned and untenable.

Under immense political pressure in 1934, this

Court in Nebbia wiped away the longstanding “affected

with a public interest” test, which for half a century

marked the line between private transactions the government had no business controlling, and public enterprises subject to regulations such as price controls.

Nebbia substituted the rational basis test—which it

19

manufactured without any constitutional foundation—saying states could “adopt whatever economic

policy may reasonably be deemed to promote public

welfare,” as long as “the laws passed are seen to have

a reasonable relation to a proper legislative purpose.”

291 U.S. at 537.

That passive voice concealed crucial questions:

seen by whom, and how? Nine months later, Borden’s

Farm Prods. Co. v. Baldwin, 293 U.S. 194 (1934), said

the rational basis test “is a presumption of fact,” and

“not a conclusive presumption, or a rule of law which

makes legislative action invulnerable to constitutional

assault.” Id. at 209 (emphases added). The Court

stressed that this evidentiary presumption is “rebuttable,” id., and that the rational basis test must not be

perverted into a charade by allowing “any fanciful conjecture” about a challenged law’s foundations to be

“enough to repel [legal] attack.” Id. Instead, “where the

legislative action is suitably challenged, and a rational

basis for it is predicated upon the particular economic

facts. . .these facts are properly the subject of evidence

and of findings.” Id. at 210. Accord, United States v.

Carolene Prods. Co., 304 U.S. 144, 152–54 (1938); Polk

Co. v. Glover, 305 U.S. 5, 9–10 (1938); Nashville, C. &

St. Louis Ry. v. Walters, 294 U.S. 405, 414–16 (1935).

Nevertheless, in the years that followed, this

Court increasingly did treat the rational basis test as

a conclusive presumption, and did allow fanciful conjectures by government defendants to repel legal attacks. Beginning in the 1950s, it began saying that

challenged laws could be upheld based on what “the

20

legislature might have concluded,” rather than what it

actually concluded. Williamson v. Lee Optical, 348 U.S.

483, 487 (1955) (emphasis added). In fact, it said laws

should be upheld whenever a judge could imagine

some possible world in which there was a legitimate

rationale for the challenged law—and that it is “constitutionally irrelevant whether this reasoning in fact

underlay the legislative decision.” Flemming v. Nestor,

363 U.S. 603, 612 (1960).6

It is widely admitted that the fundamental/nonfundamental rights distinction, and the strict scrutiny/rational basis distinction, are artifacts of an era in

which this Court sought to increase government’s

power to control the economy in ways the Constitution

never contemplated. See, e.g., 2 Ackerman, We the People: Transformations 7–11 (1998). Part of that effort

entailed reducing the degree to which laws characterized as “economic” were subject to checks and balances.

The Court tried to justify this in Carolene Products,

but that explanation made no sense; it said “discrete

and insular minorities” deserve heightened protection,

and that laws “restrict[ing] those political processes

which can ordinarily be expected to bring about repeal

of undesirable legislation” warrant judicial skepticism,

6

The Court has not applied that rule consistently. In Romer

v. Evans, 517 U.S. 620, 632–33 (1996), for example, it said that in

rational basis cases, “we insist on knowing the relation between

the classification adopted and the object to be attained,” to ensure

“that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” But the 1950s version of rational basis remains prevalent—even though it contradicts what

the Nebbia/Borden’s Farm Court said.

21

304 U.S. at 152 n.4—but economic regulations such as

the laws challenged here cross both of those lines.

As Robert McCloskey observed, “the scattered individuals who are denied access to an occupation by

State-enforced barriers are about as impotent a minority as can be imagined. . . . [They] have no more chance

against the entrenched influence of the established

bartenders and master plumbers than the Jehovah’s

Witnesses had against the prejudices of Minersville

School District.” Economic Due Process and the Supreme Court, 1962 Sup. Ct. Rev. 34, 50 (1962).

Yet rational basis, as currently practiced, blinds

courts to tyranny-of-the-majority concerns in just this

one realm, and effectively “allows the legislature free

rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of

majorities, or the self-interest of factions” in ways that

would never be tolerated if the right at issue were

travel, speech, religion, etc. Hettinga, 677 F.3d at 482–

83 (Brown & Sentelle, JJ., concurring).

It’s been said that “the categorical and inexplicable exclusion of so-called ‘economic rights’ ” from Due

Process protection “unquestionably involves policymaking rather than neutral legal analysis.” United

States v. Carlton, 512 U.S. 26, 41 (1994) (Scalia &

Thomas, JJ., concurring). Professor Tribe agrees:

failing to protect economic freedom, he writes, “overlooks the importance of property and contract in

protecting the dispossessed no less than the established” and “forgets the political impotence of the

22

isolated job-seeker who has been fenced out of an occupation.” American Constitutional Law 1374 (2d ed.

1988). The facts and law bear them out.

III. The Court should take this opportunity to

revisit the viability of The SlaughterHouse Cases.

This Court should also take this opportunity to reconsider the infamously wrong Slaughter-House Cases.

Legal scholars across the ideological spectrum

have reached a consensus that Slaughter-House was

wrong to effectively erase the Privileges or Immunities

Clause from the Constitution. See McDonald v. City of

Chicago, 561 U.S. 742, 756–57 (2010). The idea that

that Clause—which was intended as the Amendment’s

primary source of rights-protections—only secures

such rights as, e.g., “free access to [national] seaports,”

Slaughter-House, 83 U.S. at 79, or to travel to Washington, D.C., id., is not plausible in light of the Clause’s

history, which makes clear that it was written to protect far more valuable rights, including the right to engage in a lawful trade. See, e.g., Barnett & Bernick, The

Original Meaning of the Fourteenth Amendment 176

(2021); Sandefur, Right to Earn a Living, supra at 41.

See also Cong. Globe, 42d Cong., 1st Sess. app. 86

(1871) (Clause author John Bingham, explaining that

it was written to protect “the liberty. . .to work in an

honest calling and contribute by your toil in some sort

to the support of yourself [and] to the support of your

fellowmen.”).

23

As Justice Field explained six months after

Slaughter-House, the Clause was “intended to. . .extend[ ] the protection of the National government over

the common rights of all citizens,” and “would do so if

not shorn of its [efficacy] by construction.” Bartemeyer

v. Iowa, 85 U.S. 129, 140–41 (1873) (Field, J., concurring).

Slaughter-House never examined the Clause’s

original meaning or the origin of the phrase “privileges

or immunities.” It engaged in cursory historical analysis—limited solely to the phenomenon of slavery—and

reduced its consideration of the Clause’s function to a

rhetorical question: “Was it the purpose of the fourteenth amendment. . .to transfer the security and protection of. . .civil rights. . .from the States to the

Federal government?” 83 U.S. at 77. The answer was

emphatically yes. The country had just fought a bloody

civil war and amended its fundamental law to accomplish exactly that—i.e., to limit the alleged sovereignty

of states, which had abused their authority by tyrannizing over their populations. But the Court answered

no, because faithfully applying the Clause would “radically change[ ] the whole theory of the relations of the

State and Federal governments.” Id. at 78. That was

policy-making, not legal analysis.

The McDonald plurality saw “no need” to reassess

Slaughter-House, because it could rely on the Due Process Clause. 561 U.S. at 758. But by that reasoning, no

erroneous precedent could ever be overruled, as long as

lawyers find a clever work-around. Nor could Slaughter-House ever be directly challenged, except by a

24

plaintiff who waives her Due Process cause of action in

order to assert only a Privileges or Immunities claim

that is foreclosed by existing precedent—in hopes of ultimately obtaining this Court’s discretionary review,

which is a long-shot, and one some plaintiffs have already tried, unsuccessfully. Courtney v. Danner, 572

U.S. 1149 (2014); Courtney v. Danner, 141 S.Ct. 1054

(2021).

In other words, McDonald’s rationale for leaving

Slaughter-House untouched has the perverse consequence of making it a “super-precedent,” cf. Gerhardt,

Super Precedent, 90 Minn. L. Rev. 1204 (2006), not because “public institutions have heavily invested, repeatedly relied, and consistently supported [it] over a

significant period of time,” id. at 1205—they haven’t7—

but because it is so badly reasoned that plaintiffs

simply avoid the subject.

Any constitutional interpretation that renders

language surplusage is incorrect. Marbury v. Madison,

5 U.S. 137, 174 (1803). But Slaughter-House did that

with the Privileges or Immunities Clause. That Clause

was supposed to be the Fourteenth Amendment’s

7

Justice Stevens claimed that overturning Slaughter-House

would require “dislodg[ing] 137 years of precedent.” McDonald,

561 U.S. at 860 (Stevens, J., dissenting). That is not true. Since

Slaughter-House, the only cases to enforce the Privileges or Immunities Clause have been Colgate v. Harvey, 296 U.S. 404

(1935), which was overruled in Madden v. Kentucky, 309 U.S. 83

(1940), and Saenz v. Roe, 526 U.S. 489 (1999), which Justice Stevens wrote. That is the entirety of the “137 years of precedent”

that would be “dislodge[d]” if Slaughter-House were revisited.

25

crown jewel. It should never have been shorn of its efficacy by construction.

CONCLUSION

The petition should be granted.

Respectfully submitted,

ILYA SHAPIRO

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@

manhattan-institute.org

TIMOTHY SANDEFUR*

SCHARF-NORTON CENTER

FOR CONSTITUTIONAL

LITIGATION AT THE

GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, AZ 85004

(602) 462-5000

litigation@

goldwaterinstitute.org

*Counsel of Record