When Frederick Douglass escaped slavery and got his first job as a free man in New Bedford, Massachusetts, he wrote about what the job meant to him:
I was now my own master — a tremendous fact — and the rapturous excitement with which I seized the job, may not easily be understood, except by some one with an experience something like mine. The thoughts — “I can work! I can work for a living; I am not afraid of work; I have no Master Hugh to rob me of my earnings”—placed me in a state of independence, beyond seeking friendship or support of any man. That day’s work I considered the real starting point of something like a new existence.
That is the purist distillation of the American dream: to be in control of your destiny, in control of your earnings, and to build whatever new existence you choose for yourself. In this country, each man and woman has a right to earn a living.
But in some states today, the right to earn a living is under attack.
Many states have Certificate of Need (CON) laws on the books, which give existing businesses the power to prohibit a new competitor from entering the market. The burden of proof is on new entrepreneurs to prove that the industry has a legitimate need for their services.
This country was founded on the belief that every individual should have the freedom to pursue their own happiness and create the life they so choose, so long as they are willing to work for it. Integral to that sentiment is the ability to be your own boss—to set out on your own and start a business.
Whether or not that business is successful is up to the invisible hand of the free market. Or at least it should be. But CON laws disrupt that natural order, squashing the American dream and harming individuals along the way by giving them less choice in the market.
Montana, “The Last Best Place,” is not safe from CON laws.
The state requires individuals who wish to transport “garbage,” broadly defined, to get a Certificate of Public Convenience and Necessity, subject to protests from established companies, to operate.
When Parker Noland, a medically discharged Army veteran and entrepreneur, applied for a CON to go into business hauling construction debris, his application was protested by two of the largest garbage companies in the county.
After spending thousands of dollars in legal fees in an administrative proceeding before the Montana Public Service Commission, and staring down the barrel of thousands more, Parker withdrew his application, recognizing that fighting through a statutory scheme designed to favor large incumbents would be futile.
Now, represented by Pacific Legal Foundation, Parker is suing Montana and its Public Service Commission for violating his constitutional right to earn a living under the Montana Constitution and the Fourteenth Amendment to the United States Constitution.
The requirement that new businesses prove a “need” for their services has no basis in legitimate concerns about health and safety. It exists solely to protect established companies from competition. In this instance, there is no legitimate justification to prohibit Noland’s business.
These laws inhibit economic liberty and are unconstitutional. But they are often difficult to challenge in court.
Courts review the constitutionality of economic regulations under the “rational basis test,” under which the constitutionality of a government act is upheld, so long as it is “rationally related to a legitimate government interest.”
This test cannot be found in the Constitution and is so deferential to the government that it often amounts to little more than a rubber stamp for laws designed to privilege well-connected interest groups.
By contrast, courts review the constitutionality of fundamental rights, rights that “are deeply rooted in this Nation’s history and tradition,” under a much-more-rigorous standard of review called strict scrutiny. Under strict scrutiny, the challenged statute must be narrowly tailored to serve a compelling government purpose. This means that it must use the least-restrictive means possible to achieve a government objective that is truly essential, rather than a matter of mere policy preference. This standard provides far more protection than the rational basis test.
As the Supreme Court has defined the term, the right to earn a living is a fundamental right. It should receive the protections of review under the strict scrutiny standard, rather than the deferential rational basis test, because it is a right that finds longstanding support in English common law and American history.
The right to pursue the occupation of one’s choice was protected under English common law as far back as the Elizabethan Era. During the American Founding, James Madison observed: “[t]hat is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations.” During the congressional debates surrounding the ratification of the Fourteenth Amendment, both proponents and opponents of ratification believed that the Amendment protected the right to earn a living.
The Supreme Court recently reaffirmed that rights that are derived from our nation’s history and tradition are fundamental rights in its recent opinions in Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen. As Judge James Ho of the Fifth Circuit Court of Appeals noted in a recent concurring opinion, “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.” With a history of recognition from the golden age of England through the Reconstruction Era, it meets the definition of a fundamental right. Acknowledgement of this fact by the judiciary is long overdue.