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

Supp. App. 1

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 21-60898

GOLDEN GLOW TANNING SALON, INCORPORATED,

PLAINTIFF-APPELLANT,

versus

CITY OF COLUMBUS, MISSISSIPPI,

DEFENDANT-APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

MISSISSIPPI

USDC No. 1:20-CV-103

Before JONES, HO, and WILSON, Circuit Judges.

[Excerpt from opinion filed November 8, 2022]

JAMES C. HO, Circuit Judge, concurring:

Supp. App. 2

The Supreme Court has recognized a number of

fundamental rights that do not appear in the text of

the Constitution. But the right to earn a living is not

one of them—despite its deep roots in our Nation’s

history and tradition. Governing precedent thus requires us to rule against the countless small businesses, like Plaintiff here, crippled by shutdown mandates imposed by public officials in response to the

COVID-19 pandemic. Cases like this nevertheless

raise the question: If we’re going to recognize various

unenumerated rights as fundamental, why not the

right to earn a living?

***

The COVID-19 pandemic triggered “one of the

broadest exercises of state power over individuals in

the country’s history.” Eugene Kontorovich, Lochner

Under Lockdown, 2021 U. CHI. LEGAL F. 169, 182

(2021). Millions of wage earners and small business

owners watched helplessly as public officials claimed

the “extraordinary power to force people from their

chosen occupations, destroy vast investment and reliance interests, and make millions dependent on government assistance”—marking a “radical departure

from prior practice, and perhaps prior imagination, of

the scope, intensity, and duration of government

power over private business.” Id.

It was only by the grace of government that we

would eventually begin our return to normalcy. That’s

because our current law of unenumerated rights prioritizes non-economic activities over economic endeavors.

Supp. App. 3

A principled approach to the Constitution can take

one of two forms: We can enforce only those rights

that are expressly enumerated in the Constitution. Or

we can recognize a broader range of fundamental

rights, including those not expressly stated in the

Constitution, by appealing to some principle not explicit in the text.

The Supreme Court has taken the latter approach.

It has long said that it will recognize “those fundamental rights and liberties which are, objectively,

deeply rooted in this Nation’s history and tradition,

and implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if they

were sacrificed.” Washington v. Glucksberg, 521 U.S.

702, 720–21 (1997) (cleaned up). And it reaffirmed

this approach earlier this year. See Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228, 2242, 2246

(2022).

Under the Court’s approach to unenumerated

rights, we privilege a broad swath of non-economic

human activities, while leaving economic activities

out in the cold. Scholars have suggested, however,

that this may get things backwards. After all, if anything, “the right to pursue callings and make contracts . . . have better historical grounding than more

recent claims of right that have found judicial favor.”

James W. Ely Jr., “To Pursue Any Lawful Trade or

Avocation”: The Evolution of Unenumerated Economic

Rights in the Nineteenth Century, 8 U. PA. J. CONST.

L. 917, 953 (2006) (emphasis added). See also, e.g.,

TIMOTHY SANDEFUR, THE RIGHT TO EARN A LIVING:

Supp. App. 4

ECONOMIC FREEDOM AND THE LAW (2010); David E.

Bernstein, The Due Process Right to Pursue a Lawful

Occupation: A Brighter Future Ahead?, 126 YALE L.J.

F. 287 (2016); Steven G. Calabresi & Larissa C.

Leibowitz, Monopolies and the Constitution: A History

of Crony Capitalism, 36 HARV. J.L. & PUB. POL’Y 983

(2013); Timothy Sandefur, The Right to Earn a Living, 6 CHAP. L. REV. 207 (2003).

For over a century before our Founding, English

courts protected the right to pursue one’s occupation

against arbitrary government restraint. See, e.g.,

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND 415 (“At common law every man might

use what trade he pleased.”); Sandefur, supra, at 18–

23; Calabresi & Leibowitz, supra, at 989–1003. This

right emerged out of the struggles between the Crown

and the courts over the problem of monopoly—a term

that was understood at the time to mean any “company insulated from competition by a special legal

privilege which barred others from competing.”

Sandefur, supra, at 219–20. The Crown attempted to

confer special privileges by allowing only a select few

to practice certain occupations. See SANDEFUR, supra,

at 20–21; Calabresi & Leibowitz, supra, at 996–1003.

English courts responded with hostility to such efforts. For example, Lord Chief Justice of England Edward Coke observed that “the common law abhors all

monopolies, which prohibit any from working in any

lawful trade.” The Case of the Tailors, &c. of Ipswich,

77 Eng. Rep. 1218, 1219 (K.B. 1615). Eventually, Parliament enacted the Statute of Monopolies in 1623,

prohibiting monopolies while allowing exceptions for

patentable inventions. See Sandefur, supra, at 20–21;

Supp. App. 5

Calabresi & Leibowitz, supra, at 996–1003. See also

Bernstein, supra, at 288 (describing the “ancient Anglo-American constitutional tradition opposed to governmental grants of monopoly power to aid favored

businesspeople and exclude others”) (collecting authorities).

This aversion to monopolies was brought to the

American colonies. The Massachusetts Body of Liberties of 1641 contained an express prohibition on monopolies, stating that “[n]o monopolies shall be

granted or allowed amongst us, but of such new Inventions that are profitable to the Countrie, and that

for a short time.” See also Michael Conant, Antimonopoly Tradition Under the Ninth and Fourteenth

Amendment: Slaughter-House Cases Re-Examined,

31 EMORY L.J. 785, 797 (1982). And later, members of

the Founding generation agreed on the fundamental

importance of the right to pursue one’s occupation.

Benjamin Franklin wrote that “[t]here cannot be a

stronger natural right than that of a man’s making

the best profit he can of the natural produce of his

lands.” Causes of the American Discontents before

1768, in Benjamin Franklin: Writings 613 (Lemay

ed., 1987). George Mason authored the Virginia Declaration of Rights and included an express provision

securing “the enjoyment of life and liberty, with the

means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” VA. DECL.

OF RIGHTS § 1 (1776). See SANDEFUR, supra, at 24. Mason would later oppose the Constitution precisely because he feared that, absent express protections,

“Congress may grant monopolies in trade and commerce.” 1 DEBATES ON THE ADOPTION OF THE FEDERAL

Supp. App. 6

CONSTITUTION 496 (Jonathan Elliot, ed. 1866). See

generally Conant, supra, at 801. In his writings to

Thomas Jefferson about the Bill of Rights, James

Madison noted that monopolies “are justly classed

among the greatest nuisances in government.” Letter

from James Madison to Thomas Jefferson (Oct. 17,

1788), in 14 THE PAPERS OF THOMAS JEFFERSON 21

(Princeton 1958). And Jefferson agreed. In his public

and private writings, Jefferson “attach[ed] as much

importance to the English constitutional immunity

from grants of monopoly as he did those privileges and

immunities which eventually appeared in the First

Amendment.” Conant, supra, at 800. See also id. at

799–800 (same).

Similar sentiments were expressed in the years

leading up to the Civil War and the Reconstruction

Amendments. In his debates with Stephen Douglas,

Abraham Lincoln emphasized the fundamental importance of the right to exercise one’s labors: “In the

right to eat bread, without leave of anybody else,

which his own hand earns, he is my equal and the

equal of Judge Douglas, and the equal of every living

man.” The Ottawa Debate, in THE COMPLETE LINCOLN-DOUGLAS DEBATES OF 1858 117 (Angle ed.,

1991). Representative John Bingham, one of the primary drafters of the Fourteenth Amendment, later

explained that “our own American constitutional liberty . . . is the liberty . . . to work an honest calling

and contribute by your toil in some sort to the support

of yourself, to the support of your fellowmen, and to

be secure in the enjoyment of the fruits of your toil.”

Cong. Globe, 42nd Cong., 1st Sess. App. 86 (1871)

(statement of Rep. Bingham). The Supreme Court

Supp. App. 7

echoed these sentiments, observing that “[t]he right

to work for a living in the common occupations of the

community is of the very essence of the personal freedom and opportunity that it was the purpose of the

[Fourteenth] Amendment to secure.” Truax v. Raich,

239 U.S. 33, 41 (1915). See also Meyer v. Nebraska,

262 U.S. 390, 399 (1923) (recognizing the right “to engage in any of the common occupations of life”).

***

The First Amendment guarantees the freedom of

speech and religion. But the meaningful exercise of

those freedoms often requires the expenditure of resources. The Fourth Amendment secures the people

in their houses, papers, and effects, and the Fifth

Amendment protects property from taking without

just compensation. But it’s virtually impossible for

most citizens to obtain property without an income.

In short, the right to engage in productive labors

is essential to ensuring the ability of the average

American citizen to exercise most of their other

rights. Cf. JAMES W. ELY JR., THE GUARDIAN OF EVERY

OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS (2007).

So it’s not surprising that various scholars have

determined that the right to earn a living is deeply

rooted in our Nation’s history and tradition—and

should thus be protected under our jurisprudence of

unenumerated rights.

Supp. App. 8

But that is for the Supreme Court to determine.

See, e.g., Pet. for Writ of Certiorari in Tiwari v. Friedlander, No. 22-42 (U.S.). In the meantime, governing

precedent requires us to affirm. Accordingly, I concur.